GENERAL  ENFORCEMENT  POLICY




               COMPENDIUM  *
                   Volume II

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CP.1-1

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                                                             CP.I-I
>^£±\       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
5  -^a-*!-. $                  WASHINGTON, D.CX 20460
                                                            OFFICE OF
                                                           ENFORCEMENT
 MEMORANDUM

 SUBJECT:  Parallel  Proceedings Policy
 FROM:      Steven A.  Herman
            Assistant  Administrator

 TO:        All  Assistant Administrators
            All  Regional Administrators
            All  Regional Counsels
            General Counsel

      This  is the Environmental Protection Agency's revised policy
 on  initiating  and maintaining parallel enforcement proceedings.1

      Most  statutes administered by EPA include both criminal and
 civil  enforcement authorities, as well as information gathering
 and inspection provisions.  The United States has multiple duties
 and goals  in carrying out the mandates of federal environmental
 laws,  which often can be achieved most effectively through use of
 several  investigative and enforcement options.  Thus, it is in
 the public interest that EPA retain maximum flexibility in the
 use of its options,  consistent with all legal requirements.
           following policies  are  hereby superseded:

       Memo,  Revised EPA Guidance for Parallel Proceedings,  from
 Edward  E. Reich,  Acting Assistant Administrator, June 21,  1989;
       Guidelines on Investigative Procedures for Parallel
 Proceedings (attachment to 6/21/89 Memo), prepared by Paul R.
 Thomson, Jr.,  Deputy Assistant Administrator for Criminal
 Enforcement;
       Memo,  Procedures for Requesting and Obtaining Approval of
 Parallel Proceedings, from Edward E. Reich, Acting Assistant
 Administrator  for Enforcement, June 15, 1989; and
       Memo,  Supplement to Parallel Proceedings Guidance and
 Procedures  for Requesting and Obtaining Approval of Parallel
 Proceedings, from James M. Strock, Assistant Administrator for
 Enforcement, July 18, 1990.

       This policy applies in conjunction with other Agency
 guidances,  where applicable,  such as those on case screening,
 participation  in grand jury investigations, and referrals.
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                              - 2 -

     As used in this policy, the term  "proceedings"  includes
enforcement actions (both investigation and litigation stages) as
well as use of information gathering and entry authorities.
"Parallel" means simultaneous or successive civil, administrative
and criminal proceedings, against the  same or related parties,
dealing with the same or related course of conduct.

Principles

1.   It sometimes is necessary, appropriate, and a reasonable use
of resources to bring a civil (administrative or judicial)
enforcement action at the same time as an existing or potential
criminal investigation or prosecution concerning the same or a
related matter.  When, in the course of considering appropriate
enforcement options, EPA determines that injunctive relief is
necessary to obtain compliance with the law or to impose remedial
measures, the pendency of a criminal proceeding is not
necessarily a sufficient reason to fail to seek appropriate
relief.2

2.   The government legitimately may seek civil penalties which
are punitive (i.e.f effect retribution or deterrence).  On the
other hand, punitive civil penalties may have implications under
the Double Jeopardy Clause if they are assessed prior, or
subsequent, to a criminal prosecution of the same person for the
same violations.  Although case law has established that civil
penalties which are significant in amount can be assessed without
implicating Double Jeopardy concerns, it is preferable to avoid
the assessment of federal civil penalties against persons who are
likely to be subject to subsequent federal criminal prosecution
for the same violations.

3.   When an environmental criminal matter is investigated by a
grand jury, and EPA personnel obtain access to grand jury
information, EPA personnel must take care not to violate the
secrecy obligation imposed by law,  or to use grand jury
information for improper purposes.   Although the issue of grand
jury secrecy can arise in any criminal case, extra care should be
taken in the parallel proceedings context.
     2In some cases,  it may be appropriate to delay initiation of
a civil enforcement action, and/or to seek a remedial order as a
condition of probation, or as a condition of the plea agreement,
in the criminal action.  These decisions must be made on a case
by case basis, taking into account the complications which
inevitably arise in parallel proceedings  (such as defense
attempts to use civil discovery to gain information about a
criminal investigation), as well as other case-specific
considerations (such as the need to prevent persons from learning
that they are targets of criminal investigation) and weighing
them against the need for the civil action.

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                              - 3 -

4.   EPA's regulatory inspections (administrative searches) must
be objectively reasonable, and properly limited within the scope
of the authorizing statute and warrant.  As in every situation,
the government has a duty to act in good faith, and must ensure
that its use of administrative entry authorities is properly
within the mandates of the Fourth Amendment.

5.   EPA's information-gathering authorities must be used in
accordance with the authorizing statutory provisions.  There is
no general legal bar to using administrative mechanisms for
purposes of investigating suspected criminal matters, unless
otherwise specified in the authorizing statute.  However, the
government must not intentionally mislead a person as to the
possibility of use in the criminal enforcement context of
information provided in response to such requests, in such a way
as to violate the Fifth Amendment Due Process Clause or the Self-
Incrimination Privilege.

Procedures

1.   The Regional Counsel and the Special Agent in Charge of the
Criminal Investigation Division must concur in the initiation  (or
continuance) of a civil enforcement proceeding (administrative or
judicial), when a criminal proceeding is pending or contemplated
as to the same or a related matter.3  During the  pendency of any
such civil action, the Regional Counsel and the SAC should
consult on a continuing basis, in order to avoid undue
duplication of effort and interference by one action with the
other.4  As with other aspects of the case screening process,
the regions (and HQ offices, where applicable) have flexibility
in designing specific procedures to implement these requirements,
and issues may be brought to the attention of the Assistant
Administrator where agreement cannot be reached.
     3If the civil enforcement action contemplated is a judicial
(rather than an administrative) one, Agency referral policy
continues to require that the request for referral of a parallel
proceeding to the Department of Justice be routed through EPA-HQ,
for Assistant Administrator approval.  In other words, the
"direct referral" policy does not apply to parallel proceedings.
Note also that DOJ policy affects the Agency's ability to pursue
a civil judicial action that is related to a pending criminal
investigation.

     4When an EPA Headquarters office has the lead in an
enforcement matter, both the Enforcement Counsel who has the
civil case, and the Director of the Office of Criminal
Enforcement (or delegate), must concur in the civil action.
These persons should consult on a continuing basis.

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 2.   When a parallel civil action  is brought, a claim  for civil
 penalties may be filed, as necessary, to avoid claim-splitting or
 statute-of-limitation problems.  Normally, however, a  civil
 penalty claim should be stayed (not assessed or collected) as to
 a person who is a target of criminal investigation, until the
 criminal proceeding is concluded as to that person.

 3.   In the parallel proceedings context, open communication
 should be maintained between EPA personnel assigned to the civil-
 enforcement or information-gathering matter and those  assigned to
 the criminal case, in a manner consistent with the legitimate
 confidentiality and grand jury secrecy needs of the criminal
 enforcement program.5  However, information relating to matters
 occurring before a grand jury  should not be revealed without
 prior consultation with the attorney for the government (usually
 a Department of Justice attorney).

 4.   Prior to any use of EPA's statutory information-gathering or
 entry authorities to gather evidence of suspected criminal
 activity, the Regional Counsel (or the OCE Assistant Director for
 Legal Affairs, for HQ cases) should be consulted, to ensure that
 constitutional requirements are  met.

Reservation of Rights

     This policy provides internal Environmental Protection
Agency guidance.  It is not intended to, and does not, create any
rights or privileges, substantive or procedural, which are
 enforceable by any party.  No  limitations are hereby placed on
otherwise lawful prerogatives of the Environmental Protection
Agency.

cc:   All Office of Enforcement and Compliance Assurance Personnel
     sNote that it is good professional practice for enforcement
personnel to carefully document the sources of information
received and the persons with whom information is shared, whether
there is a parallel proceeding or not.

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CP.2

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CP.2-1

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                                                                          CP.2-/
                  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                WASHINGTON, D.C. 20460
                                                                           OFFICE OF
                                                                          ENFORCEMENT
                                  January 12, 1994

   MEMORANDUM

   SUBJECT:   The Exercise of Investigative Discretion

   FROM:      Earl E. Devaney, Director        P    fl  3  {  \
                Office of Criminal Enforcement   C/t*-s^>C_ C-  X—Xj£XJ7)

   TO:         All EPA Employees Working in  or in Support of the Criminal
                Enforcement Program
   I.  Introduction

         As EPA's criminal enforcement program enters its second decade and
   embarks on a period of unprecedented growth, this guidance establishes the
   principles that will guide the exercise of investigative discretion by EPA Special
   Agents.  This guidance combines articulations of Congressional intent underlying
   the environmental criminal provisions with the Office of Criminal Enforcement's
   (OCE) experience operating under EPA's existing criminal case-screening
   criteria.1

         In an effort to maximize our limited criminal resources, this guidance sets
   out the  specific factors that distinguish cases meriting criminal investigation from
   those more appropriately pursued under administrative or civil judicial
   authorities.2
   1 This guidance incorporates by reference the policy document entitled Regional Enforcement
Management:  Enhanced Regional Case Screening (December 3,1990).

   2 This memorandum is intended only as internal guidance to EPA.  It is not intended to, does not,
and may not be relied upon to, create a right or benefit, substantive or procedural, enforceable at law by a
party to litigation with the United States, nor does this guidance in any way limit the lawful enforcement
prerogatives, including administrative or civil enforcement actions, of the Department of Justice and the
Environmental Protection Agency.
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       Indeed, the Office of Criminal Enforcement has an obligation to the
American public, to our colleagues throughout EPA, the regulated community,
Congress, and the media to instill confidence that EPA's criminal program has
the proper mechanisms in place to ensure the discriminate use of the powerful law
enforcement authority entrusted to us.

II.  Legislative Intent Regarding Case Selection

       The criminal provisions of the environmental laws are the most powerful
enforcement tools available to EPA. Congressional intent underlying the
environmental criminal provisions is unequivocal:  criminal enforcement authority
should target the most significant and egregious violators.

       The Pollution Prosecution Act of 1990 recognized the importance of a
strong national environmental criminal enforcement program and mandates
additional resources necessary for the criminal program to fulfill its statutory
mission.  The sponsors of the  Act recognized that EPA had long been in the
posture of reacting to serious violations only after harm was done, primarily due
to limited resources.  Senator  Joseph I. Lieberman (Conn.), one of the co-
sponsors  of the Act, explained that as a result of limited resources,"... few cases
are the product of reasoned or targeted focus on suspected wrongdoing." He also
expressed his hope that with the Act's provision of additional Special Agents,"...
EPA would be able to bring cases that would have greater deterrent  value than
those currently being brought."

       Further illustrative of Congressional intent that the most serious of
violations should be addressed by criminal enforcement authority is the legislative
history concerning the enhanced criminal provisions of RCRA:

       [The criminal provisions were] intended to prevent abuses of the permit
       system by those who obtain and then knowingly disregard them. It  [RCRA
       sec. 3008(d)] is not aimed at punishing minor or technical variations from
       permit regulations or conditions if the facility operator is acting responsibly.
       The Department of Justice has exercised its prosecutorial discretion
       responsibly under similar provisions in other statutes and the conferees
       assume that, in light of the upgrading of the penalties from misdemeanor to
       felony, similar care will be used  in deciding when a particular  permit
       violation may warrant criminal prosecution under this Act. H.R. Conf.
       Rep. No.  1444, 96th Cong., 2d Sess. 37, reprinted in 1980 U.S. Code Cong.
       & Admin. News 5036.

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          While EPA has doubled its Special Agent corps since passage of the
   Pollution Prosecution Act, and has achieved a presence in nearly all federal
   judicial districts, it is unlikely that OCE will ever be large enough in size to fully
   defeat the ever-expanding universe of environmental crime.  Rather, OCE must
   maximize its presence and impact through discerning case-selection, and then
   proceed with  investigations that advance EPA's overall goal of regulatory
   compliance  and punishing criminal wrongdoing.

   III.  Case Selection Process3

           The case selection process is designed to identify misconduct worthy  of
   criminal investigation. The case selection process is not an effort to establish legal
   sufficiency for prosecution.  Rather, the process by which potential cases are
   analyzed under the case selection criteria will serve as an affirmative indication
   that OCE -has purposefully directed its investigative resources toward deserving
   cases.

          This  is not to suggest that all cases meeting the case selection criteria will
   proceed to prosecution.  Indeed, the exercise of investigative discretion must be
   clearly distinguished from the exercise of prosecutorial discretion.  The
   employment of OCE's investigative discretion to dedicate its investigative authority
   is, however, a critical precursor  to the prosecutorial discretion later exercised by
   the Department of Justice.4

          At the conclusion of the  case selection process, OCE should be able to
   articulate the basis of its decision to pursue a criminal investigation, based on the
   case selection criteria. Conversely, cases that do not ultimately meet the criteria
   to proceed criminally, should be systematically  referred back to the Agency's civil
   enforcement office for appropriate administrative or civil judicial action, or to a
   state or local prosecutor.

   IV.  Case Selection Criteria

          The criminal case selection process will  be guided by two general
   measures -  significant environmental harm and  culpable conduct.
   3 The case selection process must not be confused with the Regional Case Screening Process. The
relationship between the Regional Case Screening Process and case selection are discussed further at "VL",
below.

   4 Exercise of this prosecutorial discretion in all criminal cases is governed by the principles set forth
in the Department of Justice's Principles of Federal Prosecution.

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          A.  Significant Environmental Harm

          The measure of significant environmental harm should be broadly
   construed to include the presence of actual harm, as well as the threat of
   significant  harm, to the environment or human health. The following factors serve
   as indicators that a potential case will meet the measure of significant
   environmental harm.

          Factor 1. Actual harm will be demonstrated by an illegal discharge, release
   or emission that has an identifiable and significant harmful  impact on human
   health or the environment.  This measure will generally be  self-evident at the time
   of case selection.5

          Factor 2. The threat of significant harm to the environment or human
   health may be demonstrated by an actual or threatened discharge, release or
   emission. This factor may not be as readily evident, and must be assessed in light
   of all the facts available at the time of case selection.

          Factor 3. Failure to report an actual discharge, release or emission within
   the context of Factors 1 or 2 will serve as an additional factor favoring criminal
   investigation. While the failure to report, alone, may be a criminal violation, our
   investigative resources should generally be targeted toward  those cases in which
   the failure  to report is coupled with actual or threatened environmental harm.

          Factor 4. When certain illegal conduct appears to represent a trend or
   common attitude within the regulated community, criminal investigation may
   provide a significant deterrent effect incommensurate with its singular
   environmental impact. While the single violation being considered may have a
   relatively insignificant impact on human health or the environment, such
   violations, if multiplied by the numbers in a cross-section of the  regulated
   community, would result in significant environmental harm.

          B. Culpable Conduct

          The measure of culpable conduct is not necessarily an assessment of
   criminal  intent, particularly since criminal intent will not always be readily evident
   at the time of case selection. Culpable conduct, however, may be indicated at the
   time of case selection by several factors.
   5 When this factor involves a fact situation in which the risk of harm is so great, so immediate and/or
irremediable, OCE will always cooperate and coordinate with EPA's civil enforcement authorities to seek
appropriate injunctive or remedial action.

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      Factor 1.     History of repeated violations.

      While a history of repeated violations is not a prerequisite to a criminal
investigation, a potential target's compliance record should always be carefully
examined.  When repeated enforcement activities or actions, whether by EPA, or
other federal, state and local enforcement authorities, have failed to bring a
violator into compliance, criminal investigation may be warranted.  Clearly, a
history of repeated violations will enhance the government's capacity to prove
that a violator was aware of environmental regulatory requirements, had actual
notice of violations and then acted in deliberate disregard of those requirements.

      Factor 2.     Deliberate misconduct resulting in violation.

      Although the environmental statutes do not require proof of specific intent,
evidence, either direct or circumstantial, that a violation was deliberate will be a
major factor indicating that criminal investigation is warranted.

      Factor 3.     Concealment of misconduct or falsification of required
                   records.

      In the arena of self-reporting, EPA must be able to rely on data received
from  the regulated community.  If submitted data  are false, EPA is prevented
from  effectively carrying out its mandate.  Accordingly, conduct indicating the
falsification of data will always serve as the basis for serious consideration to
proceed with a criminal investigation.

      Factor 4.     Tampering with monitoring or control equipment .

      The overt act of tampering with monitoring or control equipment leads to
the certain production of false data that appears to be otherwise accurate. The
consequent submission of false data threatens the basic integrity of EPA's data
and, in turn, the scientific validity of EPA's regulatory decisions.  Such an assault
on the regulatory infrastructure calls for the enforcement leverage of criminal
investigation.

      Factor 5.     Business operation of pollution-related activities without a
                   permit, license, manifest or other required documentation.

      Many of the laws and regulations within EPA's jurisdiction focus on
inherently dangerous and strictly regulated business operations. EPA's criminal
enforcement resources should clearly pursue those violators who choose to ignore
environmental regulatory requirements altogether and operate completely outside
of EPA's regulatory scheme.

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    V. Additional Considerations when Investigating Corporations

          While the factors under measures IV. A and B, above, apply equally to
    both individual and corporate targets, several additional considerations should be
    taken into account when the potential target is a corporation.

          In a criminal environmental investigation, OCE should always investigate
    individual employees and their corporate" employers who may be culpable. A
    corporation is,*by law, responsible for the criminal act of its officers and
    employees who act within the scope of their employment and in furtherance of the
    purposes of the corporation.  Whether the corporate officer or employee
    personally commits the act, or directs, aids, or counsels other employees to do so
    is inconsequential to the issue of corporate culpability.

          Corporate culpability may also be indicated when a company performs an
    environmental compliance or management audit, and then knowingly fails to
    promptly remedy the noncompliance and correct any harm done.7  On the other
    hand, EPA policy strongly encourages self-monitoring, self-disclosure, and self-
    correction.8  When self-auditing has been conducted (followed  up by prompt
    remediation of the noncompliance and any resulting harm) and full, complete
    disclosure has occurred, the company's constructive activities should be considered
    as mitigating factors in EPA's exercise of investigative discretion.  Therefore, a
    violation that is voluntarily revealed and fully and promptly remedied as part of a
    corporation's systematic and comprehensive self-evaluation program generally will
    not be a candidate for the expenditure of scarce criminal investigative resources.

    VI.  Other Case Selection Considerations

          EPA has a full range of enforcement tools  available - administrative, civil-
    judicial, and criminal.  There is universal consensus that less flagrant violations
    with lesser environmental consequences should be addressed through
    administrative or civil monetary penalties and remedial orders,  while the most
    serious environmental violations ought to be investigated criminally. The
    challenge in practice is to correctly distinguish the latter cases from the former.
   6 The term 'corporate* or 'corporation', as used in this guidance, describes any business entity,
whether legally incorporated or not

   7In cases of self-auditing and/or voluntary disclosure, the exercise of prosecutorial discretion is
addressed in the Department of Justice policy document entitled 'Factors in Decisions on Criminal
Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or
Disclosure Efforts by the Violator' (Jury 1,1991).

   8 See EPA's policy on environmental audits, published at 51 Fed. Reg. 25004 (July 9,1986)

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         The case-selection factors described in this guidance should provide the
   foundation for the communication process that necessarily follows in the Regional
   Case Screening Process.  This 'guidance envisions application of the case-selection
   factors first, to be followed by the recurring scrutiny of cases during the Regional
   Case Screening process.

         The fundamental  purpose of Regional Case Screening is to consider
   criminal enforcement in the greater context of all available EPA  enforcement and
   environmental response options, to do so early (at the time of each case opening)
   before extensive resources have been expended, and to identify, prioritize, and
   target the most egregious cases. Regional Case Screening is  designed to be an
   ongoing process in which enforcement cases are periodically reviewed to assess
   not only the evidentiary developments, but should also evaluate the clarity of the
   legal and regulatory authorities upon which a given case is being developed.9

         In order to achieve the objectives of case screening, all cases originating
   within the OCE must be presented fully and fairly to the appropriate Regional
   program managers. Thorough analysis of a case using the case-selection factors
   will prepare OCE for a well-reasoned presentation in the Regional Case Screening
   process. Faithful adherence to the OCE case-selection process and active
   participation in the Regional Case Screening Process will serve to eliminate
   potential disparities between Agency program goals and priorities and OCE's
   undertaking of criminal investigations.

         Full and effective implementation of these processes will achieve two
   important results: it will ensure that OCE's investigative resources are being
   directed properly and expended efficiently, and it will foreclose assertions that
   EPA's criminal program  is imposing its powerful sanctions indiscriminately.

   VII. Conclusion

         The manner in which we govern ourselves in the use of EPA's most
   powerful enforcement tool is critical to the effective and reliable performance of
   our responsibilities, and will shape the reputation of this program for years to
   come.  We must conduct ourselves in keeping with these principles which ensure
   the prudent and proper execution of the powerful law enforcement authorities
   entrusted to us.
   9 The legal structure upon which a criminal case is built - e.g., statutory, regulatory, case law,
preamble language and interpretative letters - must also be analyzed in terms of Agency enforcement
practice under these authorities. Thorough discussion of this issue is beyond the scope of this document,
but generally, when the clarity of the underlying legal authority is in dispute, the more appropriate vehicle
for resolution lies, most often, in a civil or administrative setting.

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CP.2-2

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                                                          CP.1-1
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20460
                                                   OFFICE OF ENFORCEMENT

                          MAR  2 1993


MEMORANDUM

SUBJECT:  Referrals  of  Criminal Cases  for  Prosecutive Action

FROM:     Earl E. Devaney,  Director
          Office of  Criminal Enforcement

TO:       All OCE Personnel                                   V^J

          Regional Counsels

Introduct ion

     This memo establishes  and describes new referral policies
and procedures for EPA's  criminal  program.

     As you know, for some  time the  Office of Criminal
Enforcement has been discussing with interested offices the
advisability of modifying the criminal referral process.   Early
in my term as Director  of OCE,  I came  to believe that the
referral process must be  streamlined;  accordingly,  in April 1992,
OCE distributed, for review and comment, draft proposed referral
procedures for the criminal enforcement program.   In establishing
these new procedures, OCE has taken  into account the many views
and suggestions pertaining  to our  earlier  proposals.

Synopsis of Major Changes to Referral  Policy

     Among the major changes to the  criminal referral process are
the following:

     a.   Redeledgation.  As Director  of the Office of  Criminal
Enforcement, I have  redelegated my criminal referral authority to
the Director of the  Criminal Investigation Division. This
referral authority is to  be exercised  in consultation with the
Director of the Criminal  Enforcement Counsel Division,  in
response to the recommendations of the CID Special  Agent in
Charge and the Office of  Regional  Counsel.   Attached for your
information is the redelegation memo.

     b.   Case Report.  Under the  revised  policy, the special
agent assigned to the investigation  is not required to  generate a
detailed report of investigation at  the time of referral.
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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON. D.C. 20460
                                                   OFFICE OF ENFORCEMENT
                          MAR  2 1993

MEMORANDUM

SUBJECT:  Redelegation  of Criminal  Referral  Authority
FROM:     Earl  E.  Devaney,  Director
          Office  of  Criminal  Enforceme^

TO:       Dale  P.  Boll,  Director
          Criminal Investigation Division
ij2&rmA-A^
     By this memorandum,  as Director of the Office of Criminal
Enforcement, I  redelegate to the Director of the Criminal
Investigation Division my authorities to cause criminal matters
under EPA-administered statutes to be referred to the Department
of Justice  for  assistance in field investigation, for initiation
of a grand  jury investigation,  or for prosecution.  The Director
of the Criminal Investigation Division shall exercise the
referral authority,  as to specific cases,  only after consulting
with the Director of the  Criminal Enforcement Counsel Division.1

     The authorities hereby redelegated may be withdrawn at any
time, as to individual cases,  or as to all cases.

Background

     By delegations  under the various statutes administered by
EPA which contain criminal enforcement provisions, the
Administrator has authorized the Assistant Administrator for
Enforcement to  cause criminal enforcement matters under those
statutes to be  referred to the Department of Justice for
assistance  in field  investigation, for initiation of grand jury
investigation,  and/or for prosecution.  The Administrator's
delegations permit redelegation, but only to the Division
Director level.  Subsequently,  the Assistant Administrator for
Enforcement redelegated referral authority to the Director of the
Office of Criminal Enforcement.  See. Memo, Redelegations of
Authority to the Office of Criminal Enforcement, from Assistant
Administrator James  M. Strock,  dated February 26, 1991.

cc:  Kathleen A.  Hughes,  Acting Director
     Criminal Enforcement Counsel Division
     *A duly designated  "Acting"  Director may exercise  the
criminal  referral authority in the absence  of the Director.
                                                       !ZS Printed on Recycled Paper

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     A.   Full name, address, and telephone number of special
agent assigned.

     B.   Full name, address, and telephone number of Agency
attorney assigned.

V.   Legal Review and Concurrence

     A.   Include the following language:

     "The Regional Criminal Enforcement Counsel has reviewed the
investigative materials in this case, has researched statutes,
regulations and case law pertinent to the allegations, and has
identified legal issues which may require further attention prior
to prosecution.  Based on this legal review and analysis, the
Office of Regional Counsel concurs that this case warrants
referral for prosecutive assistance at this time.  Attached is a
legal memorandum pertaining to this case."

     B.   Include the signature of the Regional Counsel (or RC's
designee).

     S igned: ___^	
            Regional Counsel (or designee)

Attachments
Investigative reports not previously submitted to CID-HQ (if any)
Legal memo by RCEC

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
Sample Criminal Referral Memo Outline
As of January  1993
                                                   OFFICE OF ENFORCEMENT
MEMORANDUM — Privileged and Confidential
SUBJECT:  Referral  for Prosecutive Assistance
           (Case  Name and Number)
FROM:
          Special Agent in Charge,  CID-_
TO:            ^	^__^	,  Director
          Criminal  Investigation Division
DATE:
I.   Introduction
     Request  that the case be referred to the Department of
Justice for prosecutive assistance.
II.  Synopsis of Allegations
     A.   Briefly describe the nature of the case.
     B.   Cite the statutory provisions violated.
     C.   Attach investigative or status reports not previously
submitted to  CID-HQ,  if any.
III. Case Status
     A.   State why referral for prosecutive assistance is
warranted at  this time.
     B.   Indicate whether related civil actions have been, are
being, or are expected to be brought by the region or the state.
     C.   (If not previously included in a case opening report
and submitted to CID-HQ,)  briefly describe the regional case
screening process which resulted in an Agency consensus that the
case be investigated  for criminal violations.
IV.  Personnel Assigned
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     c.   Timing.   Under  the  revised policy, the  timing  of  the
referral  is  flexible,  and is  based on the SAC's judgment, in
consultation with the  RCEC, that the investigation would best
proceed with the active participation of a federal prosecutor
and/or a  grand  jury.

     d.   United States Attorneys.  In the past,  EPA's criminal
referrals have  been sent  to both the local U.S. Attorney's  office
and the Environmental  Crimes  Section at DOJ-HQ.   Hereafter,
referrals will  be sent only to the U.S. Attorney's office,  which
in turn will* contact DOJ-HQ,  as appropriate, pursuant to internal
Department of Justice  policy.

Background

     In order for federal  environmental crimes that come to the
attention of EPA to be criminally prosecuted, they must  be
referred  to  a trial attorney  within the Department of Justice.1
Although  this basic fact has  not changed, significant changes
have occurred in Agency policy and practice since the time EPA's
criminal  program was founded  and its original referral procedures
were established, and  these changes have affected criminal
enforcement.  The changes  that have most influenced my decision
to revise the criminal case referral process include the
following.

     Case Screening

     By memo dated  December 3, 1990,  the Assistant Administrator
for Enforcement issued a policy titled "Regional Enforcement
Management:  Enhanced Regional Case Screening."  Compliance with
this case screening policy was intended to address the need for
the regions  to  fully consider, at the time of case opening,
whether a "multi-media" approach to enforcement would be
advisable, as well  as  to consider whether the alleged violations
would best be addressed by administrative action,  civil-judicial
action, and/or  criminal investigation and prosecution.

     Prior to implementation  of the case screening policy,  the
referral  process was relied upon as the primary opportunity for
the regional media  program offices,  as well as the Regional
Counsels' offices,  to  be advised of and to indicate support for
cases proposed  for  criminal action.   Since that time, CID and the
regions have made progress toward the goal of fully consulting,
at or near the  case opening stage,  as to each matter considered
for criminal investigation by CID.   This permits CID to determine
whether the  media program  office, charged with civilly enforcing
     xln this memo, "Department of Justice" (DOJ)  refers
collectively to the Environmental Crimes Section of the
Environment and Natural Resources Division at DOJ headquarters
(ECS, or DOJ-HQ), as well as the various United States Attorneys'
Offices  (USAO).

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                              - 3 -

the statute in question, supports the matter as a criminal
investigation; proper implementation of case screening also
ensures that the Regional Criminal Enforcement Counsel will have
early involvement in the case development process.

     Regional Criminal Enforcement Counsel

     Over the last several years, the Office of Enforcement has
sought to support and enhance the role of the Regional Criminal
Enforcement Counsel as a full member of the criminal enforcement
team, from the beginning of each case to its conclusion.  There
is room for improvement still in some areas.  However, I believe
that progress has been made in ensuring that the RCEC is given an
opportunity to, and does, provide useful assistance to CID in
case assessment, research to determine legal soundness of cases,
performing liaison functions between the CID field offices and
interested regional offices, and sometimes assisting DOJ in
prosecuting the cases.

     The revised referral policy retains the requirement for the
RCEC to provide an appropriate level of legal review and analysis
of the case at the time of referral.  Of course, prior to
completion of the full investigation, it will not be possible for
the RCEC to do a comprehensive legal analysis of the type
required in a "prosecution memo."  However, it is expected that,
prior to referral, the RCEC will carefully review statutory and
regulatory provisions pertinent to the illegal conduct alleged,
and will research any significant legal issues which appear at
that time, in order to support the recommendation that the matter
be referred for prosecutive assistance.  An added benefit of a
written legal analysis at the referral stage is to assist the
prosecutor to understand the case, especially where the
prosecutor is not experienced in environmental crimes.

     CID Management

     During 1991, the Office of the Director of the Criminal
Investigation Division was relocated from the National
Enforcement Investigations Center in Denver to EPA headquarters
in Washington, D.C., where the Director of CID reports directly
to the Director of the Office of Criminal Enforcement.  This move
was part of a process by which the management of the Criminal
Investigation Division has become more centralized.

     The Director of CID has implemented a policy under which CID
special agents assigned to a case are required to write timely,
complete reports as the investigation progresses, which are
submitted to CID-HQ with case status reports every sixty days,
and there reviewed by "desk officers" who monitor CID cases in
their regions.  Because of these changes in CID procedures, it is
no longer necessary for special agents to generate a separate
report of investigation to effectuate a referral.

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                              - 4 -

REVISED CRIMINAL REFERRAL POLICY

     When, in the course of a CID investigation, the Special
Agent in Charge, in consultation with the Regional Criminal
Enforcement Counsel, determines that the investigation has
advanced to the stage that it is appropriate to refer the case to
the United States Attorney's office2 for assistance in the
investigation, for grand jury action, and/or for prosecution, the
SAC shall forward to the Director of CID a memorandum in which
the SAC recommends that the case be referred for prosecutive
assistance.

     The memo shall include a statement of the reasons why the
matter is appropriate for referral at that time, a brief
description of the nature of the allegations and citations of the
statutory provisions violated, and information as to whether any
related civil actions have been, are being, or are expected to be
pursued by the region or the state.  In addition, the memo shall
indicate the concurrence of the Regional Counsel (or the RC's
designee).3  Attached is a sample outline for the referral
memo.4

     If the Director of the Criminal Investigation Division
agrees that the matter warrants referral to the Department of
Justice at that time, the Director of CID will so indicate in a
letter to the United States Attorney.5  Only after the Director
of CID has referred the matter for prosecutive action shall the
     2Note that the U. S. Attorneys, in their discretion and in
accordance with internal DOJ policy, may request assistance from
prosecutors at DOJ-HQ.

     3The Regional Counsel may delegate this referral concurrence
authority, e.g.. to the Regional Criminal Enforcement Counsel.
In any event, it is expected that the Office of Regional Counsel
will not concur in the referral unless and until the RCEC has
been given an opportunity to do, and has done, a legal review
appropriate to the stage of the investigation.

     4This format should be used, consistent with any
supplemental or more  specific features which may be required by
CID, such as in the Special Agents' Manual.

     5Under appropriate circumstances, and in accordance with
CID's Special Agents' Manual, the SAC  (with concurrence of the
Director of CID) may  refer cases to a state or local prosecutor
for action.

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                              - 5 -

SAC forward investigative materials to the prosecutor to support
the referral.6

     When warranted by unusual and unavoidable circumstances, and
in accordance with applicable guidance in the CID Special Agents'
Manual, the SAC may request orally, and the Director of CID may
grant orally  (e.q^, by telephone), authorization to request DOJ's
assistance on an expedited basis, or to forward investigative
materials to"the prosecutor, prior to completion of the written
referral process.  Such emergency requests and approvals must be
followed, in accordance with CID policy, by the written referral
request.  It is only when the Director of CID refers the case for
prosecutive action, by written request, that the CID field office
receives credit for the referral.

Conclusion

     The simplified criminal referral process, as well as other
improvements  in CID procedures, are intended to enhance the
effectiveness of the criminal program.  As the new policy is
implemented, there may be opportunities to further improve the
process.  With your questions, comments and suggestions, please
contact either the CID-HQ desk officer for your region (202-260-
9377), or Bette Ojala of the Criminal Enforcement Counsel
Division (202-260-9660).

Two Attachments
Sample Referral Memo Outline
Memo, Redelegation of Criminal Referral Authority

cc:  Regional Criminal Enforcement Counsels
     6This referral policy is not intended to prohibit a special
agent, with permission  from the supervisor, from making informal
oral contacts with an Assistant U.S. Attorney to discuss a
potential, future case  referral.

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PB.1

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PB.1-1

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f
(
  mj
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
            WASHINGTON. O.C.  20460


               . NOV 2 1  1965
MEMORANDUM

SUBJECT;

FROM:
TO:
          Policy  on  Publicizing Enforcement /nativities

          Courtney M.  Price
          Assistant  Administrator  for Enforcement
            and Compliance Monitoring
          Jennifer Joy Manso
          Assistant Adminis
                                               Affairs
         Assistant Admii
         General  Counsel
         Inspector General
         Regional Administrators
         Office of Public Affairs
         (Headquarters  and  Regions  I-X)
         Regional Counsel  (I-X)
     Attached is the EPA Policy on Publicizing Ei.forcement
Activities, a joint project of the Office of Enforcement and
Compliance Monitoring and the Office of Public Affairs.  The
document establishes EPA policy on informing the public about
Agency enforcement activities.  The goal of the policy is to
improve communication with the public and the regulated community
regarding the Agency's enforcement program, and to encourage
compliance with environmental laws through consistent public
outreach among headquarters and regional offices.

     To implement this policy, national program ranagers and
public affairs directors should review the policy for the purpose
of preparing program-specific procedures where appropriate.
Further, program managers should consider reviewing the implemen-
tation of this policy in EPA Regional Offices during their regional
program reviews.  These follow-up measures should ensure that
publicity of enforcement activities will constitute a key element
of the Agency's program to deter environmental noncompliance.
Attachment

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         EPA POLICY ON PUBLICIZING ENFORCEMENT ACTIVITIES


I.  PURPOSE

     This memorandum establishes EPA policy on informing the
public about Agency enforcement activities.  This policy is
intended to improve EPA communication with the public and the
regulated community regarding the goals and activities of the
Agency's enforcement program.  Appropriate publication of EPA
enforcement efforts will both encourage compliance and serve as
a deterrent to noncompliance.  The policy provides for consistent
public outreach among headquarters and regional offices.

II.  STATEMENT OF POLICY

     It is the policy of EPA to use the publicity of enforcement
activities as a key element of the Agency's program to deter
noncompliance with environmental laws and regulations.  Publicizing
Agency enforcement activities on an active and timely basis informs
both the public and the regulated community about EPA's efforts
to promote compliance.

     Press releases should be issued for judicial and administrative
enforcement actions, including settlements and successful rulings,
and other significant enforcement program activities.  Purser,
the Agency should consider employing a range of methods of* \
publicity such as press conferences and informal press briefings,
articles, prepared statements, interviews and appearances at
seminars by knowledgeable and authorized representatives of the
Agency to inform the public of these activities.  EPA will work
closely with the s\ates in developing publicity on joint enforcement
activities and in supporting state enforcement efforts.

III. IMPLEMENTATION OF POLICY

     A.  When to Use Press Releases */
         1 .  Individual Cases

     It is EPA policy to issue press releases when the Agency:
(1) files a judicial action or issues a major administrative
order or complaint (including a notice of proposed contractor
listing and the administrative decision to list); (2) enters
into a major judicial or administrative consent decree or files
a motion to enforce such a decree; or (3) receives a successful
court ruling.  In determining whether to issue a press release,
!_/ The term "press release" includes the traditional Agency press
release, press advisories, notes to correspondents and press
statements.  The decision on what method should be used in a given
situation must be coordinated with the appropriate public affairs
office(s).

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                               -2-

 EPA personnel will consider:   (1) the amount of  the proposed
 or assessed penalty  (e.g., greater than $25,000);  (2) the significance
 of the relief sought or required  in the case, and  its public
 health or environmental impact; (3) whether the  case would
 create national or program precedence; and (4) whether unique
 relief is sought.  However, even enforcement actions that do not
 meet these criteria may be appropriate for local publicity in
 the area where the violative conduct occurred.  Where appropriate,
 a single press release may be  issued which covers a group or
 category of similar violations.

     Where possible, press releases should mention the environmental
 result desired or achieve*.* by  EPA's action.  For example, where
 EPA determines that a particular enforcement action resulted (or
 will result) in an improvement in a stream's water quality, the
 press release should note such results.  In addition, press
 releases must include the penalty agreed to in settlement or
 ordered by a court.

     Press releases can also be used to build better relationships
with the states, the regulated community, and environmental groups.
To this end, EPA should acknowledge efforts by outside groups to
foster compliance.  For example, where a group supports EPA
enforcement efforts by helping to expedite the cleanup of    V
Superfund site, EPA may express its support for such initiatives
by issuing a press release, issuing a statement jointly with the
group, or conducting a joint press conference.

         2.  Major Polici* 2

    In addition to publicizing individual enforcement cases, EPA
should publicize major enforcement policy statements and other
enforcement program activities since knowledge of Agency policies
by the regulated community can deter future violations.  Such
publicity may include the use of articles and other prepared
statements on enforcement subjects of current interest.
         4
         3.  Program Performance

     Headquarters and regional offices should consider issuing
quarterly and annual reports on Agency enforcement efforts.
Such summaries present an overview of the Agency's and Regions'
enforcement activities; t.iey will allow the public to view
EPA's enforcement program over time, and thus give perspective
to our overall enforcement efforts.  The summaries should cover
trends and developments i.. Agency enforcement activities, and
may include lists of enforcement actions filed under each statute.
The Office of Enforcement and Compliance Monitoring1 s (OECM)
Office of Compliance Analysis and Program Operations, and the
Offices of Regional Counsel will assist the Public Affairs Offices
in this data gathering.  Public Affairs Offices can also rely on
the figures contained in the Strategic Planning Management  ystem.

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                               -3-

         4.  Frees Releases and Settlement Agreements

     EPA has, on occasion, agreed not to issue a press release
as part of a settlement agreement.  EPA should no longer agree
to a settlement which bars a press release or which restricts
the content of a press release.  On January 30, 1985, the Deputy
Administrator issued an abbreviated press release policy, which
stated in pertinent part that:  "It is against EPA policy to
negotiate the agency's option to issue press releases, or the
substance of press releases, with parties outside of EPA,
particularly those parties involved in settlements, consent
decrees or the regulatory process."  This policy will help to
ensure consistency in the preparation of press releases and
equitable treatment of alleged violators.

     B.  Approval of Press Releases

     EPA must ensure that press releases and other publicity
receive high priority in all reviewing offices.  By memorandum
dated August 23, 1984, the Office of External Affairs directed
program offices to review and comment on all press releases
within two days after the Office of Public Affairs submits its
draft to the program office; otherwise concurrence is assumed.-
This review policy extends to OECM and the Offices of Regional
Counsel for enforcement-related press releases.

     C.  Coordination                                      »  \

         1.  Enforcement, Program, and Public Affairs Offices

     More active ur» of publicity requires improved coordination
among regional and neadquarters enforcement attorneys, program
offices and public affairs offices.  The lead office in an
enforcement case, generally the regional program office in an
administrative action and the Office of Regional Counsel or OECM
in a judicial action, should notify the appropriate Public Affairs
Office at the earliest possible time to discuss overall strategy
for communicating the Agency's action (e.g., prior notice to
state or local officials) and the the timing of a press release.
The lead office should stay in close contact with Public Affairs
as the matter approaches fruition.

         2.  Regional and Headquarters Offices of Public Affairs

     Regional and headquarters Public Affairs Offices should
coordinate in developing press releases both for regionally-based
actions that have national implications and for nationally managed
or coordinated enforcement actions.  Whenever possible, both
regional and headquarters offices should send copies of draft
press releases to their counterparts for review and comment.
Both such offices should also send copies of final releases to
their counterparts.

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                                -4-

          3.  EPA and DOJ

     EPA  can further improve the timeliness and effectiveness
of  its press releases regarding judicial actions by coordinating
with DOJ's Office of Public Affairs.  When an EPA Office of
Public Affairs decides that a press release in a judicial enforce-
ment case is appropriate, it should notify DOJ or the appropriate
U.S. Attorney's Office to ensure timeliness and consistency in
preparation of press releases.  DOJ has been requested to notify
OECM when DOJ intends to issue  a release on an EPA-related case.
EPA's Office of Public Affairs  will immediately review such
draft releases, and, if necessary to present the Agency's position
or  additional information, will prepare an Agency release.

          4.  EPA and the States

     Another important goal of  this policy is to encourage
cooperative enforcement publicity initiatives with the states.
The June  26, 1984, "EPA Policy on Implementing the State/Federal
Partnership in Enforcement:  State/Federal Enforcement 'Agree-
ments, '"  describes key subjects that EPA should discuss with
the states in forming state-EPA Enforcement Agreements.  The
section on "Press Releases and Public Information," states that
the "Region and State should discuss opportunities for joint
press releases on enforcement actions and public accounting of
both State and Federal accomplishments in compliance and eiKokce-
ment."  Further, as discussed in the subsequent January 4, 1985,
Agency guidance on "Implementing Nationally Managed or Coordinated
Enforcement Actions," the timing of state and EPA releases
"should be coordinated so that they are released simultaneously."

     Accordingly, EPA Public Affairs Offices should consult
with the  relevant state agency on an EPA press release or
other media event which affects the State.  EPA could offer
the State the option of joining in a press release or a press
conference where the State has been involved in the underlying
enforcement action.  Further, EPA-generated press releases and
public information reports should acknowledge and give credit
to relevant state actions and accomplishments when appropriate.

     Finally, it is requested that EPA Public Affairs Offices
send the  State a copy of the EPA press release on any enforcement
activity  arising in that state.

     D.    Distribution of Press Releases

     The  distribution of EPA press releases is as important as
their timeliness.  Press releases may be distributed to the local,
national, and trade press, and  local and network television
stations.

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                               -5-

         1.  Local and National Media

     EPA must "direct" its press releases to ensure that the
appropriate geographical areas learn about EPA enforcement
activities.  To accomplish this goal, the appropriate Public
Affairs Office should send a press release to the media and
interest groups in the affected area, i.e., the local newspaper
and other local publications, television and radio stations, and
citizen groups.  The headquarters Public Affairs Office, in con-
junction with the appropriate regional office, will issue press
releases to the national press and major television networks
where an EPA enforcement activity has national implications.

         2.  Targeted Trade Press and Mailing Lists

     The Agency must also disseminate information about enforce-
ment activities to affected industries.  Sending a press release
to relevant trade publications and newsletters, particularly for
a significant case, will put other potential violators on
notice that EPA is enforcing against specific conduct in the .
industry.  It is also useful to follow up such press releases
with speeches to industry groups and articles in relevant trade
publications, reinforcing the Agency's commitment to compljpnce.

     To ensure the appropriate distribution of publicity, we are
requesting each of the regional Public Affairs Offices, in coopera-
tion with the Regional Counsels and regional program offices, to
establish or review and update their mailing lists of print media,
radio and television stations, state and local officials, trade
publications, and business and industry groups for each of the
enforcement programs conducted in the Regions.

     E.  Use of Publicity Other Than Press Releases

     EPA headquarters and regional offices have generally relied
on press releases to disseminate information on enforcement
activities.  Other types of enforcement publicity are also
appropriate in certain instances.

         1.  Press Conferences and Informal Press Briefings

     Press conferences can be a useful device for highlighting
an enforcement activity and responding to public concerns in a
specific area.  Regional Administrators should consider using
press conferences to announce major enforcement actions and to
elaborate on important simultaneously issued press releases.
Press conferences should also be considered where an existing or
potential public hazard is involved.  The regional Public Affairs
Office should always inform the headquarters Public Affairs

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                               -6-

Office when  it decides to hold a press conference to provide an
opportunity  for the Administrator's advance knowledge and involve-
ment  if necessary.

         2.  Informal Meetings with Constituent Groups

      To further supplement EPA efforts to inform the public and
regulated community, regional offices should meet often with
constituent  groups (states, environmental groups, industry, and
the press) to brief these groups on recent enforcement developments.
These meetings can be organized by the Public Affairs Offices.
By informing the public, EPA increases public interest in its
enforcement  program and thereby encourages compliance.

          3.  Respond ing.;to Inaccurate Statements

      EPA should selectively respond to incorrect statements made
about EPA enforcement activities.  For example, EPA may want to
respond to an editorial or other article which inaccurately
characterizes EPA enforcement at a Superfund site with a "letter
to the editor."  Where an agency response is deemed to be
appropriate, it should promptly follow the inaccurate statement.

         4.  Articles and Prepared Statements

      EPA's Public Affairs Offices and the Office of EnforcfineX^
and Compliance Monitoring occasionally prepare articles on various
aspects of the Agency's enforcement program.  For example, Region I
issues a biweekly column to several newspapers in the Region
covering timely enforcement issues such as asbestos in schools.
We encourage all regional and headquarters offices to prepare
feature articles on enforcement issues.  When the regional office
is developing an article on a subject with national implications,
it should contact the headquarters Office of Public Affairs to
obtain a possible quote from the Administrator and to discuss
whether the  article should be expanded to a national perspective.
Likewise, appropriate regions should be consulted in the preparation
of headquarters articles or statements which refer to actions of or
facilities in particular regions.

         5.  Interviews

      In some cases, headquarters and regional Public Affairs
Offices should consider arranging media interviews with the
Regional Administrator, Deputy Administrator, the Administrator,
or other EPA officials.  Such an interview will reflect the
Agency's position on a particular enforcement activity or
explain EPA's response to an enforcement problem.

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON. D.C. X04CO
                         AUG -4 B87
MEMORANDUM
SUBJECT:
FROM
TO:
          Addendum to GM-46:  Policy on Publicizing
          Enforcement Activities
          Thomas L. Adams, Jr.
          Assistant Administrator for Enforcement
            and Compliance Monitoring
          Jennifer Joy
          Assistant Admi
                                   or External Affairs
tors
          Assistant AdmJln
          General Counse:
          Inspector General
          Regional Administrators
          Office of Public Affairs
            (Headquarters and Regions I-X)
          Regional Counsel (I-X)
I.
     ISSUE
     Significant differences can exist between civil penalties
proposed at the initiation of enforcement cases and the final
penalties to be paid at the conclusion of such matters.  This
memorandum provides guidance on addressing the issue of the
"penalty gap" where the difference between the proposed and
final penalty is appreciable.  EPA must avoid any public misper-
ception that EPA is not serious about enforcement when such
differences occur.
II.  DISCUSSION

     Attached is an  "Addendum to the EPA Policy on Publicizing
Enforcement Activities", GM-46, issued November 21, 1985.  The
Addendum provides standard text to be included in any press
release announcing the settlement of an enforcement case in
which the penalty amount finally assessed differs appreciably
from the amount proposed.

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                              -2-

     Press releases issued at the filing of cases normally
state the amount of the civil penalty being sought by the
Agency.  The proposed penalty may be the maximum statutory
amount allowable under applicable lav, or a penalty amount
as calculated by application of an Agency penalty policy which
assigns specific penalties to various violations of law.

     When a case is settled, however, the penalty to be paid
by the violator is oftentimes appreciably less than the
penalty sought by the Agency at the initiation of the action.
Members of the public may question any difference between
these two amounts, especially persons who are not familiar with
the laws, regulations, and published policies of the Agency.

     The Addendum points out that a number of mitigating factors
can result in a penalty adjustment, and that Congress on occasion
has dictated that EPA take into account such factors in determin-
ing the amount of a civil penalty (e.g., TSCA $16, 15 U.S.C.
2615).

Attachment

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 ADDENDUM TO EPA POLICY ON PUBLICIZING ENFORCEMENT ACTIVITIES,
                GM-46, ISSUED NOVEMBER 21, 1985


I.   PURPOSE

     This addendum to the EPA Policy on Publicizing Enforcement
Activities, GM-46, issued November 21, 1985, provides standard
text which should be included in EPA press releases which
announce the settlement of an enforcement case in which the
final penalty is appreciably less than the proposed penalty.

     The purpose of the text is to preclude any public misper-
ception that EPA is not serious about enforcement when these
appreciable differences occur.


II.  BACKGROUND

     Congress has directed the Agency in certain instances to
consider specific mitigation factors in assessing a final penalty.
Accordingly, the Agency regularly takes into account such factors
as the gravity of the violations), the violator's compliance
history, and its degree of culpability—in addition to weighing
such litigation concerns as the clarity of the regulatory
requirements and the strength of the government's evidentiary
case—when negotiating a civil penalty amount as part of a
settlement agreement.  Guidance for applying mitigating adjust-
ment factors is included in the Agency's published penalty
policies.


III. POLICY

     Since it is the policy of EPA to use publicity of enforcement
activities as a key element in the Agency's program to promote
compliance and deter violations, public awareness.and accurate
perceptions of the Agency's enforcement activities are extremely
important.

     Appreciable differences between civil penalty amounts
proposed at the commencement of enforcement cases and the final
penalty svuas to be paid at the conclusion of such matters may be
erroneously perceived as evidence that EPA is not serious about
enforcing the Nation's environmental laws.  Consequently, such
differences should be explained and accounted for in the Agency's
communications to the public.

     It is the policy of EPA that when press releases are issued
to announce the settlement of enforcement cases in which the
settlement penalty figure is appreciably less than the initially
proposed penalty amount, such releases should include standard
text (see Section IV, p.2) to ensure that the general public is

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                              -2-

adequately informed of the analysis behind the final
penalty amount, and the reasons justifying the penalty
reduction.  The release should also describe any environ-
mentally beneficial performance required under the
terms of the settlement which goes beyond actions being
taXen simply to come into compliance.


IV.  IMPLEMENTATION OF POLICY

     When a press release is issued at the settlement of an
enforcement action, any such press release that includes the
announcement of a final penalty assessment which is appreciably
different from the penalty proposed at the outset of the case
should include the following standard text:

          "The civil penalty in this action was the
     product of negotiation after careful consideration
     by the government of the facts constituting the
     violation, the gravity of the misconduct,  the
     strength of the government's case, and established
     EPA penalty policies.

     [NOTE: Include the following paragraph only in cases
            involving environmentally beneficial
            performance.]

          "In agreeing to this $	 penalty, the
     government recognizes the contribution to long-term
     environmental protection of [briefly summarize here
     the environmentally beneficial performance explained
     in detail in the body of the release]."

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PB.2

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PB.2-2

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                                                         Pa.i-i
       S UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460

                                 22 ,989
                                                         ENFORCEMENT AhO
                                                       COMPliANtl MONITCMIKG

MEMORANDUM

SUBJECT:  Public Relations  Policies  Pertaining to EPA Criminal
          Investigations and^Pj»secutions

FROM:     James M. Strode^—'^
          Assistant Administrator

TO:       Assistant Administrators
          General Counsel
          Inspector General
          Regional Administrators
          Deputy Regional Administrators
          Regional Counsels

     The Agency's Enforcement Communications Task Force was
established by then-Deputy Administrator Jim Barnes on June  9,
1988, for the purpose of enhancing the effectiveness of EPA's
enforcement activities by increasing both the  regulated
community's and the public's level of knowledge regarding the
Agency's civil and criminal enforcement successes.  As an
outgrowth of his participation on the Task Force.  Paul R.
Thomson, Jr., Deputy Assistant Administrator,  Criminal
Enforcement, has revised the Agency's public relations policy
pertaining to criminal enforcement, reformatting  it into two
short directives.  These policies replace GM-55,  "Media Relations
on Matters Pertaining to EPA's Criminal Enforcement Program"
(December 12, 1986).  Some issues which were addressed by GM-55.
but not in the new policies, will be covered by internal
directives to affected offices.  Interested Offices and Task
Force members are to be complimented for their superlative
collegial efforts in developing this clear and concise guidance.

     Accordingly, I hereby issue the attached policy statements
governing public and media relations in this context.

     I ask that you distribute the "Policy on Responding to
Public or Media Inquiries Regarding Criminal Investigations" to
all personnel in your respective offices or regions,  and
emphasize the importance of complying with this rule,  which is

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                               -  2  -

intended to protect both the rights  of  persons who may be under
criminal investigation and the integrity of  the Agency's criminal
investigations.  This policy directs Agency  personnel  to refer
inquiries about criminal enforcement to appropriate personnel
within EPA's criminal program.   For  your information,  also
attached is a listing of the referenced criminal  program
personnel.

     The "Policy on Publicizing  Criminal  Enforcement Activities"
is intended to emphasize to all  Agency  media-relations  or  public-
affairs personnel (and all those who are  responsible for
providing them with pertinent  information, i.e.,  primarily
criminal program personnel) that - unless unusual circumstances
warrant an exception - major events  in  criminal enforcement cases
are to be publicized by timely regional press releases.  This may
be done jointly with the United  States Attorney's office,  but it
should be carried out in a way which ensures that the Agency gets
due credit for the case.  Furthermore,  appropriate Agency
personnel must be prepared to respond to public inquires, which
may follow the publicity, regarding the Agency's regulatory
approach to the environmental problem at issue.

     These policies are aimed at getting the message to the
public that EPA is committed to using the full array of its legal
authorities to compel compliance with the environmental laws, as
well as deterring future environmental crimes.  Informing the
regulated community about the tough enforcement posture we are
taking, while at the same time protecting the rights of
individuals and the integrity of the criminal process,  is the
best w\y to achieve these national goals.  I ask your assistance
in ensuring that they are met.

Attachments

cc:  Directors, Regional Offices of Public Affairs
     Lew Crampton, Associate Administrator for Communications and
       Public Affairs
     James L. Prange, NEIC Assistant Director for OCX
     OCI Special and Resident Agents-in-Charge
     Regional Criminal Enforcement Counsels
     Office of Criminal Enforcement Counsel

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       3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      f                WASHINGTON, D.C. 20460
                                                            cWfcM ANU

                                                       COMPIIANO
                  Attention:  All EPA Personnel
              POLICY ON RESPONDING TO PUBLIC OR MEDIA
            INQUIRIES REGARDING CRIMINAL INVESTIGATIONS
     The Environmental Protection Agency's criminal enforcement
program is spearheaded by trained law enforcement agents who
investigate alleged or suspected criminal violations of Federal
environmental laws.  If and when the Agency determines that the
subject of the investigation warrants criminal prosecution and/of
grand jury investigation by the Department of Justice, the Agency
refers the matter to the Department for action..               '  "

     On occasion, a member of the public or of the news media, or
a person associated with the subject of an investigation, will
contact Agency personnel and seek information regarding the
nature or existence of a criminal investigation.  In those
s ituations , EPA personnel should responds
         , has a policy to neither confirm nor dfiHY tile.

     existence of a 
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     Once it is known that criminal charges have been filed,  all
public or media inquiries regarding the case should be referred
to the Office of Regional Counsel's Criminal Enforcement Counsel,
or to the Office of Public Affairs.

     This policy is effective immediately.  Issues relating to
the Freedom of Information Act, 5 U.S.C. section 552,  in the
criminal context are not addressed by this policy.

     This policy, and any internal office procedures which
implement this policy, are not intended to, do not, and  may not
be relied upon to create any right or benefit, substantive or
procedural, enforceable at law by any party to litigation with
the United States.  The Agency reserves the right to act at
variance with this policy as the circumstances may warrant.  In
particular, nothing in this policy shall be interpreted to
preclude, the Agency from notifying the. PublJC- when neceffisflrv- as
to anv heaJfrh or environmental hazard.
     Prepared by:   Paul R. Thomson, Jr.
                    Deputy Assistant Administrator - Criminal

            Date:

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  • » -j
*,'
8 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                WASHINGTON, D.C. 20460
           POLICY ON PUBLICIZING CRIMINAL PROSECUTIONS
     With the maturing of EPA's criminal enforcement program, it
has become apparent that the public and the news media are
becoming increasingly interested in Federal prosecutions of
environmental crimes.  It is in the Agency's interest to utilize
this public interest.  By promptly providing appropriate case-
specific information as well as relevant programmatic materials
to the media/ the general deterrence effects of criminal
enforcement will be maximized, and public awareness of EPA's
activities to address environmental pollution concerns will be
enhanced.  At the same time, the rights of those suspected or.
accused of crimes must not be abridged, and the legally-mandated
secrecy of the grand jury process must be maintained.

     Because of the special considerations which apply in the
criminal enforcement context, this guidance supplements rne
Agency's general media policy (GM-46), entitled "Policy on
Publicizing Enforcement Activities," dated November 21, 1985.
The policy (GM-55) entitled "Media Relations on Natters .
Pertaining to EPA's Criminal Enforcement Program,"  dated
December 12, 1986, is revoked.

Statement of Policy

     1)   The filing of criminal charges (by indictment or
information), verdicts or guilty pleas, and sentencings are
considered major enforcement events which should be publicized in
a timely manner by regional press releases, and will frequently
warrant national press releases or press advisories.  Such
releases or advisories may be issued jointly by EPA and the
Department of Justice.

     2)   In publicizing major criminal enforcement events,  all
Agency personnel must take care to help ensure that the
constitutional and other legal rights of the accused are not
violated.  In addition, EPA personnel who have access to secret
grand jury materials must take special care to prevent disclosure
of any such information.  Finally,  EPA personnel must avoid
releasing information which could compromise an ongoing

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 investigation  by  EPA's  Office of Criminal Investigations or the
 Department of  Justice.   In  order to carry out these objectives,
 the Office of  Regional  Counsel's Criminal Enforcement Counsel (or
 the Associate  Enforcement Counsel for Criminal,  at headquarters)
 must be consulted prior to  Agency release of any criminal case-
 specific information.

     3)   In addition to case-specific information (which is
 limited in order  to protect the  rights of the accused and the
 integrity-of the  criminal enforcement process),  the EPA  Public
 Affairs Offices should  make relevant  regulatory  or programmatic
 information available to the  public and the  news media in
 response to inquiries occasioned by the news-generating  criminal
 case event.

     4)   Because of the primary role  played  by  the  Department  of
 Justice in Federal criminal prosecutions,  the content  of  any
 Agency press release regarding a  criminal  case event should be
 informally reviewed by  the  prosecuting attorney  prior  to
 publication.  The ORC Criminal Enforcement Counsel, the OCI
 Special Agent assigned  to the case, (and OECM's  Office of
Criminal Enforcement Counsel at  HQ) are responsible for
 facilitating this consultation with Justice.

This policy, and any internal office procedures which implement
 it, etre nor intended to, do not,  and may not  be relied upon to
create any right or benefit, substantive or procedural,
enforceable at law by any party to litigation with the Unitrsd
States.  The Agency reserves the  right to take any action at
variance with this policy or implementing procedures as the
circumstances warrant.  In particular, nothing in this policy
shall be interpreted to preclude  the Agency from notifying the
public, when necessary,  as to any health or environmental
hazard.

     Prepared by:    Paul R.  Thomson, Jr.
                    Deputy Assistant Administrator - Criminal

            Date:

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RG.1

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RG.1-1

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V
      ]       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     /                     WASHINGTON, D.C.               """
                                  151985
                                                            MONITORING
      MEMORANDUM
      SUBJECT:  Issuance of Enforcement Considerations for Drafting
                and Reviewing Regulations and Guidelines for
                Developing New or Revised Compliance and Enforcement
                Strategies
      PROM:     Courtney M. Price
                Assistant Administrator for Enforcement and
                  Compliance Monitoring

      TOt       Assistant Administrators
                Office of General Counsel


           Attached is a guidance package containing: 1) enforcement
      considerations for drafting and reviewing regulations; and
      2) guidelines for developing new or revised compliance and
      enforcement strategies*

           Staff members from both the compliance program offices
      and the Associate Enforcement Counsel offices assisted with
      developing the checklists.  My staff interviewed legal and
      technical enforcement personnel and incorporated their comments
      into the guidance package as well as comments from the review
      of draft checklist*.

           The guidance should encourage consistant consideration of
      minimal enforcement requirements during regulation development.
      In addition, the guidance may assist with Initial enforcement
      of a new or revised regulation by providing minimal considera-
      tions for developing compliance and enforcement strategies
      appropriate to the regulations.

           To implement this guidance, I have requested all Associate
      Enforcement Counsels to distribute copies of this guidance to
      all enforcement attorneys responsible for the enforcement aspects
      of regulation development.  I encourage you to distribute copies
      of this guidance to your national program managers and Associate
      General Counsels and any staff who are responsible for regulation
      development*

      Attachment

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             ENFORCEMENT CONSIDERATIONS FOR DRAFTING AND
         REVIEWING REGULATIONS;  IDENTIFYING THE NEED FOR AND
   DEVELOPING NEW OR REVISED COMPLIANCE AND ENFORCEMENT STRATEGIC


   PART I  Enforcement Considerations  for  Drafting and
           Reviewing Regulations

   PURPOSE

        As part of the initiative  to establish a compliance and
   enforcement strategy process, this  guidance amplifies the
   discussion of the options selection process in the Deputy
   Administrator's January 31, 1984, "Criteria and Guidelines for
   Review of  Agency Actions".

        The guidance is in the form of a checklist of minimum
   considerations for work group members to use during the process
   of developing a major or significant rule.  The checklist is a
   tool  for work groups to use before  and  during the options selection
   process as the work group develops  the  regulation.  This guidance
   does  not attempt to list the  full range of rulemaking options.

-  APPLICABILITY

        Work  groups should use this guidance during the developm*
   of "major  rules" and "significant rules" that have enforcement
   ramifications as well as any  other  rule with enforcement
   implications.   These classifications of regulations are defined
   in the  Deputy Administrator's February  21, 1984, "Procedures
   for Regulation Development and  Review."


   CHECKLIST FOR DEVELOPING ENFORCEABLE REGULATIONS AND REVIEWING
                    REGULATIONS  FOR ENFORCEABILITY

   I.    PREAMBLE

       A.  For  the) regulation under development, would it be
  helpful  for the preamble to reference the existence of a
  compliance and enforcement strategy?

        B.  Xf the) preamble references the existence of a com-
  pliance) and enforcement strategy, does  the preamble need  to
  include) an abstract of the strategy?  Zf the preamble sets
  forth the  strategy in too much  detail,  EPA may have to use a
  rulemaking procedure to modify  the  strategy.

        C.  If the preamble summarizes policy  issues  raised  during
  regulation development,  does  it give the Agency's  rationale  for
  all major  regulatory policy choices when needed  to support
   future  enforcement efforts?

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                              -2-

     0.  Does the preamble impose substantive requirements
that should be included in the body of the regulations?

II.  DEFINITIONS

     A. .Are all necessary terms to identify the regulated
community, the regulated activities, or the regulated substances
defined?

     B.  Are exceptions to defined terms included and narrow
enough to avoid having the exceptions swallow the definition?

     C.  Are definitions and exceptions precise enough so that
enforcement personnel can identify instances of noncompliancc?

     D.  Once a term has been defined, has the term been used
consistently, in the defined form, throughout the text of the
regulation?

ZZZ. SCOPE AND APPLICABILITY OF REGULATION
                                                           «
     A.  Is the statutory authority underlying the regulation
clearly articulated?

     B.  Are exemptions to the regulation limited in scope
and specific enough to avoid confusion about the regulated
entities to which they apply?

     C.  If necessary, is the relationship of the regulation to
criminal enforcement in the same program explained?

IV.  PERFORMANCE STANDARDS

     A.  Are performance standards or other end-results
quantified or expressed in measurable ways? Are the methodologies
for measuring performance linked to the basis for the  standard?
If applicable, ie the averaging time  for determining compliance
clearly stated?

     B.  Are sjore enforceable standards available; i.e,  easier
to measure, less resource intensive,  etc.?

     C.  Are exceptions or exemptions clearly described?
Are these exceptions/exemptions permissible?

V.   MONITORING AND INSPECTION

     A.  What does the regulated  community self-monitor, report,
or maintain in records?

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                               -3-

      B.  Are the self-monitoring, reporting,  or record  keeping
 requirements related to the statutory compliance  requirements
 and desired results?  Are EPA/authorized  state  inspection
 procedures related to the compliance requirements and results
 contemplated under the statute? Do the sampling or emission
 monitoring procedures provide for adequate  chain  of custody
 for evidence of violations?

      C.  Does the regulation provide procedures for entering a
 regulated facility,  inspecting documents, and collecting samples
 as  authorized by statute?

      D.  What test methodologies are available  to determine if
 a facility is in compliance?  Are the methodologies clearly
 described?  Will standardization and quality  assurance  support
 a credible compliance monitoring program?

      E.  Can EPA/authorized state inspectors  readily  identify
 conduct in violation ot  a regulation from the language  ot the
 regulation?

      P.  Are the requirements for reports,  records, or  inspec-
 tion/monitoring technloues designed to reduce enforcement cqsts
 and  increase the effectiveness of inspections?

 VZ.   RECORD KEEPING/REPORTING REQUIREMENTS

      A.   What kind of records or reports does the regulated cor
 munity  maintain on site  or submit periodically  to an  authorize
 state or  EPA to document compliance or periods  of noncompliancfe.

      B.   What is the content of required records  in terms of
 evidentiary use to show  compliance or failure to  comply?

      C.   Are exceptions  to the record keeping requirements
 spelled out?

      D.   What kind pf records does the regulated  community
maintain  to document self-monitoring and  related  activities
 required  by the regulation?

      E.   Zf the record keeping/reporting  requirement  may  be the
 basis et  an enforcement  action, will the  information  maintained
 to meet Uie requirements provide sufficient evidence  to document
 a violation?  Zf not* what else is required?

      F.   Are the reporting requirements frequent enough for  a
 timely  response to a violation?  Za the regulated community
 required  to retain information long enough  for enforcement
 purposes?

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                               -4-

      G.  Are exceptions to the reporting requirements spelled
 out?

 VII.  DEMONSTRATING COMPLIANCE WITH PERFORMANCE STANDARDS

      A.  Does the regulation describe whet constitutes compliance?
 Is compliance determined on the basis of field inspections,
 desk reviews of regularly submitted reports, or is the regulation
 self-enforcing?

      B.  Do the regulations set definite time limits within
 which a member ot the regulated community must reach compliance?
 Do the time periods have specified beginning and end points?
 If compliance is defined by occurrence of an event, rather
 than by a date, is the event discrete enough for an inspector
 to make a compliance determination?

      C.  Are the regulations clear about who has the burden
 of proving compliance or noncompiiance?

      D.  Is the proof of violation clearly described?  Can IfPA
 carry the burden ot proof?  Does the regulation describe the
•latitude of an inspector's exercise of professional judgment
 in determining whether a facility is in compliance?

      E.  Is the response to a civil violation consistent with
 criminal enforcement authority under the statute?  Does the
 regulation provide for coordination with criminal enforcement
 actions?

      P.  Are specific penalties described for each instance of
 noncompiiance?

      G.  If compliance and enforcement is delegated to a state,
 does the regulation clearly describe the responsibilities of the
 delegated state?

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                               -5-
 Part XI  Guidelines for Identifying  the  Need  for and Develops
          New or Revised Compliance and Enforcement Strategies

 PURPOSE

      This Guidance  provides  a  checklist  for OECM and Program
 Ottices to evaluate the need for new or  revised compliance and
 enforcement strategies, assess the appropriate timing for
 completing those  strategies, and determine the scope ot strategies
 that  need to be developed.

      Work group members may  use this checklist during the
 options selection process of regulation  development to ensure
 that  new or revised compliance and enforcement strategies are
 developed concurrent with the  regulation and  that pertinent
 issues  are considered in developing  the  regulation.  Because
 each  Agency program office or  enforcement office identified in
 a compliance and  enforcement strategy has had a representative
 on the  work group developing the regulation,  a new or revised
 strateqy should include a discussion of  which office is respon-
 sible for each  part of  the strategy.                       ?

      This guidance  amplifies the Play 1984, "Strategy Framework.
 for EPA Compliance  Program*  and the  October 1984 memorandum
 from  the Deputy Administrator  on the strategic planning proces-~
 for compliance  and  enforcement within EPA.


 APPLICABILITY

      This Guidance  is limited  to developing new or revised
compliance  and  enforcement strategies fort

      1.   New program initiatives within  the Agency;

     2.   New statutory  responsibilities  delegated to the
          Aqencyj

     3.   Hevisions  to existing regulations that a program
          office determines will have a significant effect
          on an  ongoing  program; and

     4.   Programs with  existing strategies that are not
          producing  adequate  environmental results.

     A  compliance and enforcement strategy or revisions  in
selected  components of  an existing strategy would  not  be
necessary  for every revision of an existing regulatory program.
Por example,  a  compliance and  enforcement strategy would not
be needed  for each  new  or revised effluent guideline.

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RG.1-2

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
«l                         WASHINGTON, D.C. 20460
                                                        f?6. I -2

                              JAN 271986
                                                         OFFICE OF EKFOKCEMEVT
                                                           AND COMPLIANCE
                                                            MONITORING
   MEMORANDUM

   SUBJECT:  A Summary of OECM's Role  in the/rAgency's Regulatory
             Review Process   /~\           //
                             i  *  -—  O~>-F~^
   FROM:     Courtney A. PriJe__.^l-'~>1  ^ '
             Assistant Administrator for Enforcement
               and Compliance Monitoring

   TO:       Associate Enforcement Counsels
             OECM Office Directors
        The purpose of this memorandum  is to provide OECM staff
   with a description of OECM's role and responsibilities in  the
   Agency's regulatory review process,  and a description of the
   Agency's regulatory review process itself.  This memorandum
   also sets forth procedures for OECM  staff to  follow  in review-
   ing and concurring in regulation packages (i.e., Red Border
   packages, Consent Calendars, responses to General Accounting
   Office (GAO) reports, reports to Congress, etc.).

        Under present procedures, the Associate  Enforcement
   Counsels have  the responsibility for developing a timely,
   coordinated OECM response to a given regulatory package.   The
   correspondence control unit (CCU) keeps track of the status
   of all regulation packages under OECM review  and, where neces-
   sary, reminds  OECM media divisions of applicable deadlines.
   The Director of the Legal Enforcement Policy  Division acts as
   OECM's Steering Committee Representative to provide  OECM's
   point of view  in general rulemaking  procedures and act as  a
   clearinghouse  for Start Action Requests.

        The first part of this memorandum outlines OECM's role in
   the regulatory review process.  The  second part sets forth
   procedures for OECM staff to follow  in reviewing and concurring
   in regulation  packages.  Attached are two appendices.  The
   first contains three charts diagramming the regulatory review
   system.  The second is a document which summarizes the Agency's
   regulatory development and review process as  managed by the
   Office of Policy, Planning, and Evaluation  (OPPE).

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                              -2-

     Please make sure that each member of your staff receives
a copy of this memorandum.  This will allow all of OECM to
operate with a common understanding of the procedures for
reviewing regulation packages.  If you have any questions or
comments on these procedures, please contact Arthene Pugh at
475-8784.

Attachments

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OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING
           REGULATORY REVIEW PROCESS
                                Arthene Pugh
                                Legal Enforcement Policy
                                  Division
                                December 11, 1985

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I.    OECM's Role in The Agency's Regulation Review Process

     Over the past several years, OECM has played an active
role in the Agency's regulation review process especially
during Steering Committee and Red Border reviews.  Almost all
proposed regulations including Agency directives, manuals,
responses to GAO reports and some Agency reports to Congress
require the review of OECM staff and the official concurrence
of the Assistant Administrator for the Office of Enforcement
and Compliance Monitoring (AA/OECM).

     A.  OECM Participation in Steering Committee Meetings

     Occasionally, a formal Steering Committee meeting will be
held to discuss an important or controversial regulation package
or other related issues (see Appendix II, page 5 for the role of
the Steering Committee).  As OECM's Steering Committee represen-
tative, the Director of OECM's Legal Enforcement Policy Division
(LEPD) may attend as OECM's "official" representative at these
meetings.  As a practical matter, however, the Director/LEPD
will inform the appropriate Associate Enforcement Counsel (AEC)
of these meetings, and will rely on the AEC and his staff to
attend and participate in Steering Commitee meetings.

     B.  OECM Participation in SAR Review

     After a Start Action Request  (SAR) has been submitted to
the Office of Policy, Planning, and Evaluation (OPPE), OPPE
will circulate to Steering Committee representatives a copy of
the SAR for review and approval, and a work group membership
invitation (see Appendix II, page  3 for a complete explanation
of the SAR).  Since the Director/LEPD is OECM's Steering Commit-
tee representative, he will receive the SAR and work group
invitation.  The Director/LEPD will forward the SAR review and
work group invitation to the appropriate AEC for approval and
response.  The AEC will submit the name(s) of his staff who will
participate in work group meetings, and the AEC will make any
comments on the SAR to the Office of Standards and Regulations
(OSR) in OPPE.

     C.  OECM Participation in Work Group

     The lead office will convene an Agency-wide work group to
develop the regulation.  The purposes of the work group are to
identify the issues facing different Agency offices in formulat-
ing the proposed rule and to begin resolving those issues.
OECM's representative in work group activities is responsible
for presenting a consensus OECM position on matters and issues
discussed before the work group.

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                              -2-

     D.  OECM's Participation in Steering Committee Review

     Steering Committee review is the initial procedure to
prepare the proposed regulation package for consideration and
final concurrence by senior Agency management.  The Steering
Committee review determines whether the regulation package is
ready to enter the final interoffice review (Red Border review)
prior to signature by the Administrator.  This task is accom-
plished by means of Consent Calendar clearance review.  The
Consent Calendar is a review process which gives Steering
Committee representatives the opportunity to provide written
comments on the regulation package without a scheduled meeting.
Consent Calendar packages are reviewed and concurred in by the
appropriate AEC.

     E.  OECM Participation in Red Border Review

     Red Border review normally is the final step in Agency-wide
review of a proposed regulatory action.  In this process, the
AA/OECM along with other participating AAs indicate whether they
concur in the regulation package.  OPPE will send to OECM the
regulation package for review and comment and will indicate the
established deadline for review.  The package will be reviewed
by the appropriate OECM media division and concurred in by the
AEC, where applicable, or the AA/OECM, as appropriate according
to delegations was described below.


II.  Procedures for Concurrence on Regulation Packages Under
     OECM Review

     A.  Procedures Under The Old System

     In the past, LEPD reviewed and maintained a tracking system
for all regulation packages (i.e., Red Border, Consent Calendar,
reports to Congress, responses to GAO reports, etc.) that
required the signature of the AA/OECM.  LEPD maintained this
tracking system to ensure that OECM responded in a timely manner
with established deadlines.  Prior to signature by the AA/OECM,
LEPD also reviewed the package to make sure that any enforcement
issues contained in the package were properly addressed and
reviewed by the appropriate OECM media division.  After LEPD's
review, the package was forwarded to the AA/OECM for
concurrence.

     The Director/LEPD had final sign-off authority on Consent
Calendar packages.  These packages were reviewed by the appro-
priate OECM media division, and then forwarded to the Director/
LEPD for signature.  However, in rare instances, the AA/OECM
would sign off on Consent Calendar packages if they contained
controversial  enforcement issues.  Appendix #1 indicates  the
review process for regulation packages under  this system.

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                              -3-

     B.  Revisions to Procedures for Reviewing Regulation
         Packages

     To streamline the review process, in April 1985, the
AA/OECM delegated to the AECs the authority to sign off for
the AA/OECM on regulation review packages that only require a
recommendation of concur (no outstanding enforcement issues)
and concur with comment, if comments were editorial in nature
(e.g. correcting typos or grammar).  If the recommended response
was concur with substantive comment or to non-concur, then the
package had to be signed by the AA/OECM.  Consent Calendar
packages continued to be signed by the Director/LEPD.

     Where AEC sign-off is appropriate, the new procedures
eliminated four steps - 4, 5, 6, and 7- (see Chart fl in
Appendix I) in OECM's prior review process.  Packages that
required the signature of the AA/OECM continued to be processed
through all of the 8 steps (see Chart tl in Appendix I).
Consent Calendar packages continued to be processed in the same
fashion.

     Soon thereafter LEPD conducted an evaluation of OECM's
review procedures to determine the need for LEPD to continue to
review and track regulation packages.  The evaluation revealed
that the OECM media divisions were performing the review,
commenting, and recommendation functions.  If any issues had to
be resolved or discussed with the AA/OECM, the appropriate OECM
media division handled the matter.  Consequently, in August
1985, the Director/LEPD issued a memorandum which eliminated
LEPD from the tracking and signing off steps in the review
process.  This action taken by LEPD has greatly streamlined
OECM's review process as outlined below.

     LEPD maintains its role as OECM overseer of the rulemaking
process, primarily in two ways.  The Director/LEPD is OECM's
Steering Committee Representative and handles all cross-media
rulemaking matters.  Also, by virtue of his position as OECM
Steering Committee Representative, the Director/LEPD receives
a great deal of material relating to specific rulemakings,
including SARs, which are directed to the proper OECM media
division.  Twice a year OPPE issues a complete list of all EPA
rulemakings which LEPD sends to the media divisions so the
AECs can ensure that they are actively involved in all rulemak-
ings in which they have an interest.

     C.  Current Procedures for Concurrence on Regulation
         Packages Under OECM Review

     OECM's correspondence control unit (CCU) now has the
responsibility for making sure that OECM responds in a timely
manner to regulation packages under OECM review.  The CCU
forwards all regulation packages directly to the appropriate

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                               -4-

 OECM medium division for review and response.   The OECM medium
 division will  review the package and make  a  determination  of
 the  appropriate  action  to be  taken.  If  the  regulation  package
 is one  in which  the  response  is concur (no comment or outstand-
 ing  enforcement  issues), or concur  with  comment (if  comments
 are  purely editorial  in nature),  then the  AEC  should sign  the
 clearance sheet  for  the AA/OECM,  and send  it back  to the CCU
 for  distribution.

      If  the package  is  one in which the  response is  concur with
 substantive comments  or non-concur, then the OECM  medium divi-
 sion should prepare  a memorandum  from the  AA/OECM  addressed to
 the  AA of the  the lead;program  office, with a  courtesy  copy to
 the  AA/OPPE.   The review package  and  memorandum should  be  sent
 to the CCU  for signature  by the AA/OECM.   (Charts  12 and |3 in
 Appendix  I  outline the  stages of  review  for these  packages).

     With respect to Consent  Calendar packages, the AECs will
 have  the  final concurrence on all Consent  Calendar clearance
 sheets.   The AEC will indicate, by  check mark  ( y/) the  appro-
 priate response, no comments  or comments attached, and  then
 sign his  name  in the signature block.  It  the  response  is
 •comments attached,* then a memorandum should  be prepared,  for
 the signature of the appropriate AEC, and addressed to C. Ronald
 Smith, Chairman, Steering Committee, OSR/OPPE.   After signature,
 the package should be returned to CCU for distribution.   Although
 OPPE permits telephone responses on Consent Calendar packages,
OECM should respond by completing the Consent  Calendar clearance
 sheet.

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                                                     APPENDIX I

                                                                                                             Chart, fl



                                          Regulation Review - Old System

                  12                3             45              6           789

Regulation —> CCU	> LEPD	> ORCM	> LEPD	> CCU	> AEC/OBCM —>  AA/OECM --> CCU	> OPPE
Review         (Log-In)   (Assign           Media        (Review)   (Log-in)     (Concur-     (Signa-    (Distri-
Package                   to appropriate    Division                             rence)       ture)       bution)
(Red Border,              OECM media        (Review
GAD Reports               division)         and action)
and
Reports to
Congress)

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                                                                                      Chart 12
                               "Regulation Review - New System
Regulation --
Review
Packages
(Red Border,
Consent
Calendar,
r.AO Reports
and Reports
to Congress)
CCU	
(Log-i n
and assign
to appropriate
OECM media
division)
OECM	
Media
Division
(Review
and
signature)
> CCU	
  (Distribution)
    4

•> OPPE
* This system is applicable to those packages for which a recommendation  is  concur  (no
  comment or outstanding enforcement issues), or concur with  comments  (comments  are
  purely editorial in nature).  If the response  is concur with  comment  (substantive
  comments) or nonconcur, use the system in Chart 13  of this  Appendix.

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                                                                                             Chart  13

                                       •Regulation Review - New System



                   1                  234567

Regulation	> CCU	> OECM	>  CCU	> AEC/OECM	> AA/OECM	> CCU	>  OPPE
Review           (Log-in             Office       (Log-     (Concur-      (Signa-      (Dlstribu-
Packages         and assign          (Review       In)      rence)        ture)        tion)
(Red Border,     to appropriate      and
GAO Reports      OECM division)      action)
and Reports
to Congress)
       *This system Is applicable to those  packages  for which  a  recommendation  is concur with
        substantive comment  for which a  memorandum  is  required,  or non-concur.   If the response
        Is concur (no comment or outstanding  enforcement issues), or  concur with comment
        (comments are purely editorial  in nature) use  the system in Chart |2 ot  this Appendix.

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                          APPENDIX II

                AGENCY REGULATION REVIEW PROCESS
I.   Agency Participants and Their Roles in the Regulation
     Review Process

     A.  Lead Office

     The program offices have lead responsibility for initiating
and developing most regulations.  The Assistant Administrator
(AA) of the lead office and his/her designee (the project
officer) manage the development of the regulation.  The lead
office organizes the Agency-wide work group and notifies desig-
nated office representatives of scheduled work group activities.
The project officer of the lead office chairs the work group
meetings.  Milestone schedules for developing the proposed
regulation are established by the lead office.  In addition* the
lead office elicits the participation, support and resources of
other Agency offices and the public in developing the proposed
regulation.

     B.  Primary Participating Offices

         1.  Program Assistant Administrators

     The program Assistant Administrators (AAs) review all of
the proposed rulemakings, including their own specific program
regulations to offer their opinions and expertise on particular
issues.  This helps ensure the necessary integration of all of
the Agency's programs.  The AAs are represented in all Steering
Committee reviews, and they participate in options selection
reviews and meetings, and in Red Border reviews that are of
interest to them, as explained below.

         2.  Assistant Administrator for Policy, Planning
             and Evaluation

     The Assistant Administrator for the Office of Policy,
Planning and Evaluation (AA/OPPE) manages the operation of
the Agency's regulation review process.  Within OPPE, the
Office of Standards and Regulations (OSR) performs the task of
coordinating the regulatory review process within the Agency.
The AA/OPPE is also responsible for overseeing the Agency's
compliance with other Federal regulations such as Executive
Order 12291, the Paperwork Reduction Act and the Regulatory
Flexibility Act.

     The AA/OPPE directs the Steering Committee process and
participates in each Red Border review.  OPPE assigns a lead
analyst to work with each of the Agency's program offices on
their regulations and work groups.  The AA/OPPE focuses the

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                              -2-

office's attention on the analytical quality, program inte-
gration, cost-effectiveness, and scientific and statistical
validity of proposed regulatory actions.  The AA/OPPE also
provides an independent assessment of the proposed rules for
the Administrator's and the Deputy Administrator's review.

         3.  Office of General Counsel/Office of Enforcement
             and Compliance Monitoring

     The Office of General Counsel (OGC) reviews regulatory
action packages to advise the Administrator, Deputy Adminis-
trator, and Assistant Administrators on the legal aspects of each
proposed rulemaking.  The Office of Enforcement and Compliance
Monitoring (OECM) reviews regulatory packages to advise the
Administrator, Deputy Administrator and Assistant Administrators
on the enforcement aspects of each proposed rulemaking.  The OGC
and OECM lawyers work closely with the lead offices to assist
them in drafting regulations.  The General Counsel and OECM are
represented in all Steering Committee reviews and participate in
Red Border reviews.

     C.  Other Participating Offices

     The Assistant Administrators for Enforcement and Compliance
Monitoring, Research and Development, External Affairs, and
Administration and Resources Management have lead office
responsibility for a select number of regulations generated by
their offices.  These AAs, as well as a representative tor the
Regional Administrators (RAs), are all represented in Steering
Committee reviews and participate in Red Border review for
regulatory actions that are of interest to them.


II.  Procedures for Developing a Regulation

     In terms of work products, the process of developing a
regulatory action can be divided into five stages:

         0  submission of a start action request;

         c  preparation of a development plan;

         0  establishment of a work group;

         e  review and selection of options; and

         0  submission of a proposed/final regulatory
            decision package.

     The procedures for these five stages consist of certain
requirements that the lead program office must satisfy together
with an associated review process.

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                              -3-

     A.  Start Action Request (SAR)

     All proposed regulations must have an approved SAR before
the Agency can begin development of the proposed regulation.
The lead office must submit a SAR to OSR/OPPE for approval by
the AA/OPPE.  The SAR is a brief document which describes the
proposed regulatory action, its purpose, and the reason for
initiating the regulatory action including any consequences
which may result if no regulatory action were initiated or
undertaken.  The SAR must also justify why Agency time and
resources should be expended for developing the proposed regu-
lation during the time period specified for development.  OPPE
and Steering Committee members must review and approve the SAR
within three weeks of its submission.

     B.  Preparing the Development Plan (DP)

     The DP outlines the basic policy and management framework
for developing a proposed regulation.  All rulemakings that
are classified as major or significant require a DP.  The DP
states the need for the regulatory action, identifies its goals
and objectives, identifies any alternative actions that can be
taken which may be environmentally or administratively accept-
able, and presents a work plan and strategy for developing the
regulation.

     After OPPE approves the SAR, the lead office has 60 days
in which to submit the DP to the Steering Committee.  The
Steering Committee reviews the DP, usually within a two week
period.  If the DP is acceptable, the Steering Committee Chair-
man approves it.  In the case of major regulations, the DP must
be approved by the AA/OPPE.

     C.  Establishing the Work Group

     The work group meets shortly after the SAR has been approved,
The work group consists of representatives from OPPE, OECM, OGC,
Office of External Affairs, Office of Research and Development
and the RAs who choose to participate in the particular rule-
making.  Other AAs or their representatives may participate
when there are issues involved that are of interest to their
particular program.

     The work group meets throughout the regulation development
and review process until the decision package is submitted for
Agency-wide review.  Full support and participation of the work
group provides a forum tor snaring expertise and knowledge on
the regulation under development, and ensures that all Agency
resources are efficiently and properly allocated.

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                              -4-

     D.  The Options Selection Process

     The options selection process involves the formulation,
refinement and selection of feasible options connected with
one or a series of decision points.  The goal of this process
is to narrow the range of acceptable alternatives for the
Administrator's final decision.  Work group meetings are held
to discuss the options, select/reject options and refine the
options selected for further development.  The options should
be clearly stated and defined in the development plan.

         1.  Level I Process

     There are two types of options selection processes.  The
first, Level I Process, applies to major regulatory actions.
The lead office must circulate an options paper to participat-
ing AAs and RAs and the Deputy Administrator 10 days before a
scheduled options review meeting.  The options review meeting
is chaired by the Deputy Administrator or the lead program
AA.  The participants must agree on which options are to be
retained for further development and consideration and which
are to be rejected.  Results of options meetings are documented
by OPPE which issues a closure memorandum (summary of options
review meeting) that is used by the Deputy Administrator to
resolve any options issues.

         2.  Level II Process

     The second, Level II Process, applies to some major and
significant regulations.  For major regulations, the lead pro-
gram AA will make the determination as to which process, Level I
or Level II, the regulatory action will follow.  Work group
meetings are convened to discuss the options under consideration
for further development.  The lead office prepares a summary of
the options considered and those rejected, and submits this
summary along with the decision package to the Steering
Committee and Red Border reviews.

     Work group participants and the lead program AA work
together to resolve any differences or decisions on options
issues that should be considered for further development.  If
differences or decisions cannot be resolved, the Steering
Committee makes a determination which options should be con-
sidered or, if it is unable to achieve closure, the Steering
Committee identifies all disagreements and brings them to the
attention of the Deputy Administrator, or the affected program
AA.  OPPE documents the results of the meetings and options
selected or rejected, and circulates the closure memo to the
participants and the AA/OPPE for their review.

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                              -5-

         3.  Options Selection Paper

     With respect to both Level I and Level II processes/ the
options selection paper, prepared by the lead office, should
evaluate and analyze the following issues: relevant economic
impacts, reporting and recordkeeping burdens required by the
proposed rulemaking, assesment of impact on other regulatory
programs both within and outside ot the Agency, and resources
required for implementation and enforcement of the regulatory
action.

         4.  The Decision Package

     The lead office prepares the decision package which is
submitted for Steering Committee and Red Border reviews.  The
decison package includes a neutral discussion of the major
options including comments from any AAs regarding the options,
a summary of the options considered and rejected and reasons
therefor, a detailed analysis of reporting and recordkeeping
burdens, and a thorough analysis and assessment of the resources
necessary for implementing the proposed rulemaking.  The deci-
sion package must be circulated to the work group for review
and comment, and must be approved by the lead program AA before
it is submitted for Steering Committee or Red Border review.


III. Reviewing of Regulatory Actions

     A.  Steering Committee Review

     The Steering Committee decides whether a package is ready
tor Red Border review after resolution ot all issues.  The
Steering Committee includes a representative for each of the
AAs and the General Counsel.  The representative to the Steering
Committee should:

         1.  Hold a position at or above an Office Director
             level;

         2.  Hold a position in the immediate office of the AA
             or General Counsel, or report directly to the AA
             or General Counsel;

         3.  Have general knowledge and responsibilities
             covering the areas ot regulatory issues tor the
             program he/she represents.

The Director of OSR chairs the Steering Committee.

     All major and significant rules must follow a certain
sequence and a series ot reviews.  They must all undergo Steering
Committee review which usually takes two weeks.  For major and

-------
                               -6-

some  significant  rules, a meeting of  Steering  Committee represen-
tatives must be scheduled.  However,  some significant rules
undergo Consent Calendar review in lieu of a Steering Committee
meeting.  In spch  instances, OPPE circulates the package to the
Steering Committee for written comments, normally due within two
weeks.

      B.  Red Border Review

      Red Border review is the  formal  senior management review
ot all decision packages by the AA/OPPE, the General Counsel and
all applicable AAs and RAs.  The normal period for Red Border
review is three weeks.  It a reviewing ottice tails to respond
by the established review deadline, it is assumed by OPPE that
the reviewing office concurs without comment, and the package
proceeds on to the next stage.

     C.  Office of Management and Budget (OMB) Review

     Executive Order 12291 requires that all proposed and final
rules (except those that OMB has exempted) be sent to OMB tor
review.  The AA/OPPE must approve Agency documents for trans-
mi ttal to OMB tor review.  Minor and significant rules are
reviewed within about 10 days.  Proposals of major rules and
dratt regulatory impact analysis are subject to a 60-day review
by OMB.  Final major rules and final regulatory impact analysis
are subject to a 30 day review.

     D.  Review by the Administrator and Deputy Administrator

     Once the Red Border and OMB reviews are completed, the
package is forwarded to the Administrator and Deputy Admini-
strator for final approval and signature.  A special assistant
to the Administrator and the Deputy Administrator will review
tne regulation package and maKe a recommendation to the
Administrator and Deputy Administrator as to the appropriate
action to be taken.  Once the Administrator signs the package,
it is returned to OSR/OPPE.  This office makes the necessary
arrangements to publish the rule in the Federal Register.

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RG.1-3

-------
I ^g2 | UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
V^**>               WASHINGTON. D.C. 20460           PC. / *3
                                                     6 n-if si
                          FEB  6
                                                         ENFORCEMENT AND
 MEMORANDUM                                            COMMANCE MONITORING
 SUBJECT:   The Regulatory  Development Process:   Change in
           Steering Committee  Emphasis and OECM Implementation
 FROM:      Thomas L.  Mams,  Jr.
           Assistant  Administrator  for Enforcement
             and Compliance  Monitoring

 TO:        Senior Enforcement Counsel
           Associate  Enforcement Counsels


 I.   Background

     On October 16,  1986, the Administrator announced significant
 changes in the role  of the  Steering Committee in the regulatory
 development process.  (See  Attachment 1:  Memorandum, Subject:
 "The Regulatory Development Process:  Change in Steering
 Committee Emphasis", Oct. 16, 1986 with attachments.)

     Principal changes in the process include:

           *  Steering Committee meetings will be held on all
              Start Action Requests (SARs) at which lead program
              offices will ask other programs for workgroup
              representatives, issues, an indication of their
              level of interest, and agreement on subsequent
              review  of the  regulation;

           *  Workgroup reports will be submitted by each
              workgroup chair to the Steering Committee; and

           •  There will be  flexibility in determining the
              levels  of review of the final package, depending
              on resolution  of issues through the workgroup
              process .

     A series of ten fact sheets (Attachments 2-11) explain in
 greater detail various aspects of the newly-constituted Committee

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                               -2-

      A primary purpose  for  the overall  change  in Steering Committee
 procedures is to preclude situations where major issues or concerns
 are raised at the last  minute—even as  late as the Red Border
 Review stage—since  any such circumstance may  significantly disrupt
 the schedule for completion of a project.

      For  this reason, the new  procedures enhance the individual
 workgroup's effectiveness by ensuring that issues are raised,
 resolved,  or elevated early in the regulatory development process;
 and to assure that cross-media issues are identified and addressed
 as  early  as possible*

      We must therefore  ensure  that OECM workgroup members are
 adequately supervised and clearly understand their role in
 speaking  for OECM during the course of  workgroup deliberations.
 Similarly,  the OECM  Steering Committee  Representative must be
 adequately informed  to  speak authoritatively for OECM as matters
 come  before the  Steering Committee for  review.

      Accordingly,  I  am  asking  each Associate Enforcement Counsel
 to  assume  responsibility for ensuring that workgroup members
 under his  supervision clearly  understand and articulate OECM's  •
 position  in all  workgroup activities.   Enforcement issues
 which cannot be  routinely resolved within the workgroup must be
 elevated to OECM senior management for  further guidance.

      I have asked Terrell Hunt to serve as OECM's Steering Committ<
 Representative and Winston  Haythe as the Alternate Representative.
 Mary  M. Allen of OPPE is the Steering Committee Chair.


 II.   Procedures;

      In order that OECM's participation on the Steering Committee
 can be most effective,  I am asking that the following procedures be
 followed.

      First,  at the conclusion  of each Steering Committee meeting,
which convenes biweekly on  Wednesdays,  a draft agenda for the
 next  meeting is  distributed.   Terrell will furnish copies of
 that  draft  agenda (with any other relevant documents) to the
 AECs  at the Senior Enforcement Counsel's regular Friday staff
 meeting two days thereafter.

      Second,  each ABC should review that draft agenda (plus any
 other distributed materials) for matters applicable to his program
 area  and then provide Terrell  at the next Friday staff meeting
 with  a one-page  summary (e.g., bullets  of talking points) for
 any  issues  which should be  voiced to the Committee with respect
 to  each agenda topic.   These summaries  should  also contain the
 name  and telephone number of the OECM workgroup member  for any

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                              -3-

given regulatory matter on the agenda. If an AEC desires no
involvement on an agenda topic in his area,  this fact should
likewise be communicated to Terrell.

     Finally, if the workgroup member or the AEC desires to
attend the Committee's next meeting, please inform Terrell
by so indicating on that particular summary.

Attachments:  11

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON. DC. 20460

                           OCT 16 1386
                                              THE ADMINISTRATOR
MEMORANDUM FOR:  Assistant Administrators
                 General Counsel
                 Inspector General
                 Associate Administrators
                 Regional Administrators
                 Staff Office Directors

SUBJECT:         The Regulatory Development Process:  Change in
                 Steering Committee Emphasis


     EPA's regulatory development process is generally viewed as
an effective means of accomplishing the Agency's primary business
— producing effective regulations.  Improvements are sometimes
desirable, however, to keep up with the Agency's changing priori-
ties and needs.

     At the September 18th meeting of the Risk Management Coutfcil,
we discussed one proposal that could improve the process involving
the role of the Steering Committee.  This proposal has been under
consideration for some months and was previously discussed in the
Risk Management Council, the Steering Committee, with individual
Office Directors and Deputy Assistant Administrators, and finall
with Assistant Administrators at a recent staff meeting.  Given
the positive responses to this proposal and the number of benefits
it offers, I want to begin using it for all regulations starting
through the regulatory development process, effective immediately.

     The principal changes you need to be aware of include:

     o  Steering Committee meetings will now be held on all SARs,
        at which lead program offices will ask other programs for
        workgroup representatives, issues, an indication of their
        level of interest, and agreement on subsequent review of
        che regulation;

     o  A system of workgroup reports submitted by the workgroup
        chair to the Steering Committee will be initiated; and

     o  There will be flexibility in determining the levels of
        review of the final package (e.g., bypassing Steering
        Committee), depending on resolution of  issues through
        the workgroup process.

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                               -2-
     The purpose of these changes is not to alter the basic pro-
cess itself, but to improve the operations of the workgroup with-
in the syttem.  As the Agency's standing body for regulatory
oversight, the Steering Committee is the appropriate vehicle for
accomplishing this improvement.  There are two important objec-
tives behind these changes:

    1 .  To use the Steering Committee as a vehicle to help
        program offices plan regulatory activities and set
        priorities; enhance the workgroup's effectiveness by
        ensuring that issues are raised, resolved, or elevated
        early in the regulatory development process; and assure
        that cross-media issues are identified and addressed as
        early as possible in the process.

    2.  To set up a dynamic and flexible approach within the
        existing regulatory development process to respond to
        program offices' varying needs for different types of
        regulatory actions, recognizing the overall goal of the
        system to produce regulations with adequate involvement
        of Agency programs.

    An outline of how this process will work in practice is   f
attached.  The task of implementing this proposal will fall equal-
ly on the Steering Committee as well as line managers within the
Agency.  I would like each of you to support the Steering Commit-
tee in moving toward this new role.  This process places a premium
on good policy management, timely elevation of issues, and colle-
gia! working relationships at all levels.  Your support and coope-
ration are essential.
                             r~^
                               "V
                                Lee H. Thomas


Attachment
cc:  Steering Committee
      timbers

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CHANGES AKD ROLES IN THE REGULATORY DEVELOPMENT PROCESS


1.  HOW THE PROCESS KILL WORK

    (a)  Make SAR process work;

         o SARs would be distributed as  now  to Steering Committee
           representatives prior to formation of workgroup allow-
           ing enough time for program offices, via  Steering
           Committee representatives, to evaluate  and  decide  the
           level of priority for them.

         o Regular Steering Committee meetings will  be scheduled
           at which several SARs will be presented to:

            -•Have the lead program office present what it intends
              to do, ask other programs  for:  issues,  workgroup
              representatives, indication of level of  interest.

         [Note:  This will be done  for all regulations; from  this
          point on, the level of review  for  each will  depend  on
          the type of regulation under consideration.]
                                                             •
            --Agree on level of subsequent review  any  particular
              regulation would receive given cross-office  impli-
              cations, scope, complexity (i.e., how  many work-
              group reports, whether it  needs a development plan
              [with or without a separate Steering Committee
              meeting], whether it  will  need a final Steering
              Committee meeting).

    (b)  Work Group Reports (see Exhibit A for prototype of
         format)

         o Purpose is to;

            --Provide lead program  office and workgroup  chair with
              a means to encourage  early raising  of  issues and
              ensure agreements or  disagreements  in  other  offices
              are identified and resolved early  in the process.

           . —Include enough information so  that  workgroup repre-
              sentatives will recognize  specific  issues  and
              whether or not they have been  resolved (this is in
              the workgroup chair's best interests,  since it
              would be counter-productive to have a workgroup
              representative raise an issue  again later  in the
              process because he/she did not recognize it in the
              workgroup chair's report).  The report does not
              need to be an exhaustive treatise meant to educate
              Steering Committee members or  other program offices

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                      -2-
     on the details of workgroup deliberations  (that  is
     the responsibility of  their workgroup  representa-
     tive).

    •Provide Steering Committee members,  workgroup  repre-
     sentatives from other  offices  and  their managers a
     useful check on progress of regulations under  deve-
     lopment.

    •Promote a sense of responsiblity in  workgroup  pro-
     cess since workgroup representatives will  need to
     be sure that positions they take in  the workgroup
     are consistent with their line managers' and Assist-
     ant Administrator's positions  (because they will be
     documented in the report and concurred on  by Steer-
     ing Committee members).
o Process:
    -Workgroup chair will submit written reports to
     Steering Committee chair according to the schedule
     agreed co at SAR (or Development Plan)  meeting
     (could be one during lifetime of workgroup or
     several, as necessary).
                                                    n
    -Report will be distributed to all Steering Commit-
     tee members requesting comment within a certain
     timefrarae (e.g., two weeks), after which concur-
     rence will be assumed.

    -It will be the responsibility of Steering Committee
     members to determine whether or not the workgroup
     report is accurate, by checking with the workgroup
     representative and, as necessary, line managers and
     the DAA/AA to confirm the AAship's position.

    -If another program office does not agree with the
     workgroup chair's characterization of the status of
     issue resolution, that should be raised in the com-
     ments of the Steering Committee member on the
     report.  Then, the Steering Committee chair will
     work with the relevant Steering Committee members
     and program offices to elevate the issue to the
     appropriate level until it is resolved.  Alterna-
     tively, the workgroup chair's report may identify
     an issue that needs to be resolved before the work-
     group can proceed.  The same process of issue eleva-
     tion would apply here.

    •At the end of the comment period, the Steering Com-
     mittee chair will issue a closure memo, with the

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                               •3-


              workgroup report attached, noting any comments
              received and discussions held, or conclusions
              reached, as a result of the workgroup report.

     (c)   Final Review

          o The final workgroup report will recommend whether or
           not the package should be sent directly to Red Border,
           bypassing final Steering Committee review, or undergo
           some other form of closure.

          o Through the Steering Committee concurrence process on
           the report, other program offices will agree with the
           workgroup chair's recommendation, raise unresolved
           issues, or suggest some other forum for closure.

2.   RESPONSIBILITIES OF WORKGROUP CHAIRS

     o Provide report(s) to Steering Committee and other workgroup
      members.

     o Manage project according to agreed-upon schedule.

     o Assure that all offices have an opportunity to present views
      and that the best option is selected on an objective and
      unbiased bases.

     o Assure that cross-media considerations are properly
      addressed.

     o Provide early and clear information to workgroup members
      regarding meetings, issues and other items necessary for
      full workgroup member participation.


3.  ROLES AND RESPONSIBILITIES OF STEERING COMMITTEE MEMBERS

    o The role of Steering Committee members will not change sub-
      stantially.  However, they will need to take on the respon-
      sibility of explicitly assigning representatives to work-
      groups, following up on workgroup reports to determine the
      AAship's position, and, in general, serving as the center
      of Information flow for all regulatory development activi-
      ties (with special attention to cross-iaedia issues).  Speci-
      fically, Steering Committee members will require ready
      access to the entire range of personnel in the office (from
      workgroup representatives through office directors to the
      DAA/AA) to be able to carry out their functions.   In addi-
      tion, they will need enough authority to be able to elevate
      issues for resolution, if necessary, with the AAship.

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                           -4-


o Specific functions of Steering Committee members would
  include:

   -•Representing the Assistant Administrator in policy dis-
     cussions arising from the Steering Committee rtview pro-
     cess, including (a) representing the AA's polic;' posi-
     tions on scheduled agenda items and (b)  determining how
     unresolved issues could be addressed and at what level.

   --Contributing to identification and decisions on how to
     resolve cross-media issues in the Agency's regulatory
     process.

   --Directing the flow of the office's regulatory documents
     into and through the regulatory review systems, includ-
     ing Start Action Requests, Steering Committee, Red
     Border, Options Selection and Federal Register activi-
     ties.

   —Managing the review of other offices' regulations, re-
     viewing SARs and development plans, assure that line
     managers understand the nature and consequences of the
     regulation, participation in the decision on the AAshap1 s
     level of interest, serving as the primary point of con-
     tact regarding representation in workgroups, and manag-
     ing review of workgroup reports within  the AAship,
     responding, if necessary, to the report via the Steering
     Committee chair.

   --Serving as the liaison for OMB review,  including track-
     ing and issue resolution.  Managing the relationship
     regarding Executive Orders 12291 and 12498, including
     the Regulatory Agenda and Regulatory Program.

   --Facilitating the relationships between  program  staff,
     OPPE as managers of the regulatory process, and other
     offices.  This includes providing information and guid-
     ance co program staff on regulatory development.

   --Serving as intra- and inter-office mediator to  resolve
     issues.

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                                                    Exhibit A
                             PROTOTYPE
                    WORKGROUP REPORTING FORMAT
 1.   Issue  Resolution;
     a.   Lisc  significant  issues resolved since the last report.
         For each:
         --What  is  the  issue, and how does it relate to the envi-
           ronmental problem (or regulatory alternative) being
           considered?
         --What  alternative were considered, and why were they
           eliminated?  What options remain?
         --How was  the  issue resolved?
     b.   List  significant  issues still outstanding.  For each:
         —What  is  the  issue that is unresolved?  What are the
          different positions within the workgroup regarding  §
           this  issue?                                         '
         --Has a process been established for resolving the issue
          within the workgroup, or should it be elevated for
          resolution?
         --If  the lack  of  resolution relates to the inadequacy
          of available data, what data are needed and what time
          and resources are required to obtain them?
2.  Status of Technical and Analytic Support Work;
    a.  List  the status of principal studies and analyses sup-
        porting the rulemaking?  Are further studies needed to
        support the project?
    b.  Are the current and projected studies sufficient in terms
        of quality and scope to meet project needs?

3.  Operation of the Workgroup;
    a.   Is participation  in the workgroup sufficient to address
         important  issues  and other aspects of the ruleroaking?
    b.  Do you anticipate any delays and, if so,  for what reason?

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FACT SHEET tl — Regulation Management Series

                    The Steering Committee

Description and Purpose:  The Steering Committee is a standing
    group with representation from each Assistant Administrator
    and the General Counsel.  It is the primary mechanism for
    coordinating and integrating the Agency's regulatory devel-
    opment activities.  Its key functions are to approve Start
    Action Requests (SARs) and charter workgroups; monitor the
    progress of staff-level workgroups, especially regarding
    cross-media or inter-office problem-solving; and ensure,
    when appropriate, that significant issues are resolved or
    elevated to top management.  Regions participate in Steering
    Committee activities through Regional Regulatory Contacts.
    These Contacts coordinate reviews in the Regions and facili-
    tate rule-related activities and information for the Regional
    Administrators (RAs).

Operationt  The Steering Committee meets biweekly (every other
    Wednesday morning), with additional meetings scheduled as
    necessary.  Its regular format is (a) discussion and dispo-
    sition of SARs (b) review of Development Plans (c) considera-
    tion of pending Workgroup Reports and (d) other issues.  Upon
    request, the Chair will schedule a separate meeting to consi-
    der a proposed or final rulemaking package, or arrange for some
    other form of Steering Committee review.  Any office may submit
    documents or issues for the agenda through its Steering      :
    Committee Representative.  Regional Contacts receive all
    Steering Committee documents.  Typically they are not able to
    attend meetings, but Regions can send written comments.  Due to
    time limitations, they sometimes call the Regulation Management
    Branch (RMB) in the Office of Standards and Regulations with
    issues, so that RMB can present these views at a meeting.  After
    each meeting, the Committee Chair issues a closure memo that
    documents outstanding issues, agreements, and action to be taken.
    RMB provides staff support for the Committee.

Membership:           Chair:  Mary M. Allen
                              382-4001

OW:    George Ames      OSWER:  Joan LaRock      OEAt   Richard  Laska
       382-7818                 382-4617                382-4095

OPTSs  Judy Nelson      OECMt   Terrell Hunt     OPPE:  Jack Campbell
       382-2890                 382-4539                382-4335

OAR:   Paul Stolpman    ORD:    Irwin Baumel     OGC:   Gerald Yamada
       382-5580                 382-7669                475-8064

                        OARM:   Gail Korb
                                382-5000

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FACT SHEET *1 page 2 — Regulation Management Series
Role Within Each Office:  In addition to their role as members of
    the Steering Committee, these representatives play an important
    regulatory management role within their offices.  They direct
    the flow of documents into and through the Agency's regulatory
    review systems (including Red Border, Options Selection, and
    Federal Register activities); serve as their Assistant Adminis-
    trator's liaison with OMB, under Executive Orders 12291 and
    12498; and direct their programs' review of other offices'
    regulatory development activities.

See Also:  Administrator's Memorandum "The Regulatory Development
    Process:  Change in Steering Committee Emphasis" (October 16, 1986);
    and "Information Sheet to Guide New Steering Committee Process"
    (November 19, 1986).  Available through 382-5475 or Room 415W.

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FACT SHEET 12 — Regulation Management Series


                    Start Action Request!

Purposet  A Start Action Request (SAR) initiates work on a rule
    or related action and establishes the Agency workgroup.   It
    provides brief, descriptive information and should be prepared
    at the very outset of an office's effort.  Its principal pur-
    poses are to alert other Agency offices to the lead office's
    intention to develop a rule, and provide the Steering Committee
    with the opportunity to discuss and plan for the inter-office
    or inter-media aspects of the action.  In addition, submitting
    the SAR to the Steering Committee is the mechanism for:   (a)
    reaching agreement on the necessary review steps (e.g.,  a
    Development Plan, Options Level I review, Workgroup Reports,
    and an Information Clearance Request), and (b) helping all
    Agency programs decide at the start of the process whether
    to designate members to participate on the workgroup and
    what skills would best contribute to the rulemaking.

Preparing the Document:  The SAR is a one-page form with instruc-
    tions on the reverse side.  It asks primarily for descriptive
    information, which should be available to the lead office
    when it starts work on the regulation.  The most important
    category of information on the form is Item 4, called
    "Description of Action."  The Steering Committee uses this  i
    information to determine the significance of the action for'
    the Agency and for individual offices, the need for a
    Development Plan, or other planning documents, the composition
    of the workgroup, and the type of management review that is
    appropriate.  For these reasons, the description should give
    information on any likely cross-program effects, issues or
    problems.  The description should:

    * Clearly define of the problem, including its health and
      environmental significance;
    * Indicate the effect of this problem—and any likely regula-
      tory action to solve it—on other environmental media or
      programs;
    * Identify the EPA Regions and other groups that should be
      involved; and
    * Specify the kind of expertise and level of participation
      expected from workgroup members.

Operationi  The program office prepares a SAR, and submits 25
    copies through its Steering Committee Representative to the
    Steering Committee Chair for distribution.  The Steering
    Committee has at least one week to review it.  To be included
    in a biweekly Wednesday meeting, SARs must be submitted
    before COB (4:00 p.m.) Tuesday, 8 days before the meeting.
    The program office briefs the Steering Committee.  The
    Committee approves the SAR, charters a workgroup, designates
    workgroup members, and determines what further reviews are
    appropriate.  If the SAR does not provide sufficient informa-
    tion for Steering Committee Representatives to select their

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FACT SHEET #2 page 2 — Regulation Management Series
    workgroup members, they can give the Regulation Management
    Branch (RMB) the name or namea after the meeting.  RMB will
    include these names in the closure memo for the meeting.  The
    program office then convenes the workgroup.

See Also:  SAR forms, guidelines, and prototypes are available
    from your Steering Committee Representative.

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FACT SHEET 13—Regulation Management Series


                        The Workgroup

Purpose:  Workgroups are EPA-wide, staff-level groups formed
     to develop regulatory actions and supporting materials.
     The workgroup's primary responsibilities are to support
     the lead office in its design, technical, and analytical
     work; identify and assess principal policy issues and
     options, especially those that are cross-media; resolve
     issues or elevate them for upper management's resolution;
     and ensure the quality and completeness of regulatory
     packages.  Workgroup members are expected to represent
     the policy positions and perspectives of their management
     as well as to contribute their technical and analytic
     expertise.

Operation*  The workgroup's formal operation begins with the
     approval of the Start Action Request (SAR) and the chartering
     of the workgroup by the Steering Committee.  The lead office
     chairs and convenes workgroup meetings.  Other members of
     the workgroup are assigned by their offices' Steering
     Committee Representatives.  How the workgroup should operate
     will vary, depending on the rulemaking.  The workgroup
     chair should discuss and clarify members' roles and expecta-
     tions early in the process to avoid misunderstandings.  The?
     workgroup's first responsibility, for major and significant'
     rules, is to prepare a Development Plan, which the Steering
     Committee reviews.  For most rules, the Steering Committee
     will ask the workgroup to report on its progress through
     periodic Workgroup Reports, which the workgroup chair must
     prepare.  To ensure workgroup and Steering Committee consensus
     on the agenda of issues for discussion, the workgroup chair
     should prepare a comprehensive list of issues  (orginally
     part of the Development Plan for major or significant rules),
     and revise it as appropriate throughout the rulemaking.

Participation;  Typically the lead office will place several
     people on the workgroup to support the chair and conduct
     the bulk of the technical, analytical, and drafting work.
     OGC, OPPE, and often ORD and OECM participate; other
     program offices—OAR, OPTS, OSWER, and OW—often participate
     actively, especially when there are significant inter-media
     issues.  OEA and Regional Offices participate  less frequently.
     If a Steering Committee member assigns more than one represen-
     tative* they usually designate one person as lead to represent
     the Assistant Administrator's position and coordinate  the
     efforts of the office's other representatives.  If workgroup
     progress requires that there be a single lead  from other
     offices, the lead program Steering Committee member can
     request each office to designate a lead.  Except for special
     cases, it is very difficult for Regions to participate
     actively on work groups.  Therefore, the lead  office should
     initiate efforts to solicit Regional office perspectives on
     regulatory options, especially those that pertain to
     implementation issues.

See Also:  Fact f-hae.,  " ,  Workgroup Reports."

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FACT SHEET 14 — Regulation Management Series

                      Development Plans

Purpose:  The Development Plan sets forth the framework for
     developing proposed major or significant Agency rules.
     Its purpose is to explain the need for the action; iden-
     tify regulatory goals and objectives; present the major
     regulatory issues and alternatives; identify any policies;
     decision criteria or other factors that will influence
     regulatory choices; and present the work plan for devel-
     oping the regulation.

     The Development Plan is prepared for Steering Committee
     review.  This review is meant to identify the full range
     of issues early in the process.  Steering Committee will:
     (a) raise cross-media or other issues or alternatives not
     identified in the Plan; (b) inform the lead office of rela-
     ted studies underway in the Agency; (c) encourage coordina-
     tion of Agency resources, experience and policies; and
     (d) review the work plan and schedule to decide how the
     various offices will participate, and whether they can meet
     time and resource needs of the lead office.

Preparing the Document:  The lead office prepares the document
     with participation from the workgroup.  The document should
     include detail commensurate with the complexity and impor-f
     tance of the rule.  The extent to which the program can
     specify the health and environmental problem as well as the
     issues and alternatives will depend upon their previous
     experience with this problem and the data available.  In
     any case, the document should include a comprehensive list
     of issues, which the workgroup should amend as necessary
     throughout the development process.

Operation:  The lead office should submit the Development Plan
     to Steering Committee review within 60 days of SAR approval
     (unless the Steering Committee agrees to another date).
     The lead office submits 25 copies of the Plan to its
     Steering Committee Representative, who reviews the document
     before sending it to the Steering Committee Chair for distri-
     bution.  The Steering Committee  review period is two weeks.
     [To get a Plan on an agenda, the Steering Committee member
     must submit it to the Office of  Standards and Regulations
     by COB Tuesday, 15 days before that biweekly Wednesday
     meeting•3

     Steering Committee members review  the package to  ensure
     that it is complete and to identify questions or  issues.
     The lead program office then briefs  the  Steering  Committee
     on the Plan at the biweekly meeting.  Members will  raise
     any questions or  issues at that  meeting.  After discussion,
     and resolution of questions and  issues,  the Steering  Committee

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FACT SHEET 14 page 2 — Regulation Management Series


     approves the Plan, perhaps contingent upon certain revisions
     or clarifications.  The Committee agrees upon an appropriate
     schedule for workgroup reports and other review steps.  A
     closure memo documents the Steering Committee meeting,
     including issues raised, decisions made, and next steps.
     The Steering Committee tracks progress on the rule through
     workgroup reports.

See Also:  Guidelines and prototype Development Plans available
     Steering Committee Representative.

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FACT SHEET I 5 — Regulation Management Series


                      Workgroup Reports


Purpose:  Workgroup Reports keep the Steering Committee informed
    about workgroup progress on a regulatory action.  They
    describe: (a) issues and alternatives being addressed and
    resolved; (b) any issues that need to be elevated for resolu-
    tion; and (c) the status of ongoing work and any anticipated
    delays.  The Steering Committee's discussion of the Workgroup
    Report focusses on cross-media or other issues or alternatives
    not being considered by the workgroup.  Steering Committee
    concurrence with the Report is designed to ensure that issues
    resolved by the workgroup are not raised again at a later date,
    and that unresolved issues are dealt with in a timely way.

Preparing the Document:  The workgroup chair prepares the Report
    in consultation with workgroup members.  The document should
    summarize the status of issues; it need not be exhaustive.
    It should include enough detail to allow workgroup members
    to determine that all issues are included and their status
    is presented accurately.  Steering Committee Representatives
    are expected to confer with their workgroup member(s).  A
    cumulative or master list of issues (both resolved and unre- ?
    solved) should accompany the Report as an attachment.  This
    list should simply copy the issues outlined in the Development
    Plan, and might not change throughout the workgroup effort.
    If no Development Plan is prepared, the first Workgroup Report
    should contain the initial list of issues to be addressed.
    Any additional issues arising during the rule's development
    should be added to the master list.

Operation:  The Steering Committee Representative submits 25
    copies of the Report to the Steering Committee Chair, who
    distributes it for a two-week Steering Committee review.
    (Workgroup members should already have received a copy.)
    To be included in a biweekly Wednesday meeting, Reports
    must be submitted by COB Tuesday, 15 days before that
    meeting.   At the meeting, the program office briefs the
    Steering Committee on the Report.  Typically the workgroup
    chair attends the Steering Committee meeting to participate
    in the discussion.  After discussion, the Steering Committee
    approves the Report or requests revisions and makes recom-
    mendation*.  If issues must be elevated, Steering Committee
    Representatives determine what these issues are and in what
    forum to raise them.  The Steering Committee Chair issues a
    closure memo that documents issues raised and decisions made
    at the Steering Committee meeting.

See Also:  Fact Sheet #3, "The Workgroup."   A Workgroup
	Reporting Format and copies of prototype Workgroup Reports
    are available from your Steering Committee Representative.

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FACT SHEET 16 -- Regulation Management Series


                  Workgroup Closure Meetings


Purposei  The workgroup closure meeting is an  alternative to the
    Steering Committee's review of regulation  packages  before they
    enter Red Border (Assistant Administrator's)  review.   It provides
    a forum for confirming that (a) the workgroup has successfully
    completed its job,  resolving as many issues as possible and
    clearly defining others, (b) the rulemaking package is ready
    for AA, RA, and DA-level review, and (c) Agency and external
    requirements have been met.

Participants!  A representative of the Information and Regulatory
    Systems Division, from the Office of Standards and Regulations,
    chairs the closure meeting.  The role of the OSR chair is to
    facilitate closure, not to decide substantive issues.  Members'
    of the workgroup participate in the meeting as representatives
    of their Assistant Administrators.  Offices that have not
    taken part in the workgroup's deliberations do not participate
    in the closure meeting.

Operation:

    1.  The lead office's Steering Committee Representative requests
        a closure meeting through the appropriate Desk Officer i?n
        the Regulation Management Branch.  The lead office must *
        provide a complete draft rulemaking package to workgroup
        members at least ten days before the closure meeting.
        This draft package includes materials that normally are
        expected as part of the Steering Committee review—the
        rule, action memo, preamble, supporting analysis, infor-
        mation clearance request (ICR), and other relevant materials.

    2.  The typical format for the meeting is:  with the OSR chair
        presiding, the workgroup chair gives a brief summary of
        issues resolved and those still outstanding, and describes
        any changes since the lead office distributed the draft
        package to the workgroup.  Other workgroup members offer
        their AA's position (e.g., concurrence, concurrence subject
        to revisions, concurrence subject to an issue that will be
        raised for decision in Red Border, or nonconcurrence).
        The OSR chair encourages closure by clearly establishing:

        a.  Matters that should be addressed before Red Border,
        b.  issues (if any) to be presented in Red Border,
        c.  participation in, and date for beginning Red Border
            review, and
        d.  whether or not to have concurrent OMB and Red Border
              review.

    3.  Following the closure meeting, OSR will issue a brief
        summary that certifies a package for Red Border review or
        documents other conclusions.  This closure memo defines
        the conditions, timing, and other aspects of Red Border
        review.  The lead office and affected parties resolve any
        problems, either before or during Red Border review, using
        the Steering Committee as a forum, if appropriate.

See Alsot  Fact Sheet #3, "The Workgroup."

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FACT SHEET 17 -Regulation Management Series

                                                  •

             Information Collection Requests (ICR«)

Purpose: Under the Paperwork Reduction Act (PRA), Agency offices mus
    prepare an ICR to obtain OMB clearance for any activity that wil
    involve collecting substantially the same information from ten
    or more non-Federal respondents.  Offices or workgroups involved
    in developing a rule may need to prepare ICRs for:

     o studies or surveys for rule development; and/or
     o information requirements to be included in the rule itself—
        e.g. reporting, monitoring, or recordkeeping requirements.

Timingt For studies or surveys, the ICR should be ready to submit four
    months before the activity is scheduled to begin.  Development
    Plans should allow enough lead time in scheduling the research
    activities subject to the PRA.

    For information requirements, the ICR should normally be ready to
    submit by the point at which the rulemaking package first reaches
    formal Agency-wide closure or review, whether this is Workgroup
    Closure, Steering Committee, or Red Border review.  The ICR may
    involve rulemaking issues of interest to other participating
    offices that need to be resolved at the latest in conjunction
    with Red Border review.  The ICR must be submitted to OMB on,
    the date that the proposed rule is publishedT:

Preparing the Document: Offices must submit ICRs to the Information
    Policy Branch (IPB) in the Office of Standards and Regulations,  -
    which has responsibility for EPA compliance with the PRA.  IPB
    has available a detailed set of instructions for writing the
    ICR; IPB is also prepared to review and offer advice on
    preliminary drafts.  In writing the ICR, special attention
    should be given to*

     o the statement of the need for—and use of—the information to
        be collected; this is what justifies the ICR;
     o the calculations of cost to government and burden on respondents
        especially to make sure that they are consistent with calcula-
        tions of economic impact in the rulemaking package; and
     o in the case of surveys, a detailed explanation of any statisti-
        cal components, including the sampling and analysis plans.

Operation: The originating office submits the ICR to  IPB.  IPB then
    review* this document for information policy issues—e.g. the need
    for th« information collection, plans for information management,
    data quality, statistical validity—and responds  with any problems
    within two or three weeks.  Once any problems are resolved, IPB
    submits the ICR to OMB for their clearance review, which normally
    takes 60-90 days.  In the case of information requirements in
    proposed rules, if OMB does not approve the  ICR  then the ICR must
    be resubmitted in conjunction with publication of the final rule.
See Also:   PRA Guidelines

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FACT SHEET 19 page 2 — R*.,'ilat. on MJ.U«;V-.
    response before making substantive changes.  OPPE  tracks  and
    reports on the status of rules under OMB review and  current
    issues for senior management.

See Alsot  Fact Sheet 18, "Red Border Review".  Steering Committee
    Representatives can advise on exemptions from  E.O. 12291  review.

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 FACT SHEET #10  — Regulation  Management Series


                                ^. ..-r Publication
 Purpose; The y ^.aral Register publication system was established
     by  Congresr as .« means of informing the public of regulations
     that affect them.  The Office of the Federal Register, manages
     publication of Federal regulations.  Publication in the
     Federal Register has certain legal effects, among them?

      *  providing official notice of a document's existence
        and content;
      *  creating a rebuttable presumption that the text is
        a true copy of the original document;
      '  establishing that the document was duly issued,
        prescribed, or promulgated; and
      *  providing evidence that is recognizec by a court of law.

 Preparing the Document:  When preparing a document for Federal
     Register publication, follow the formal requirements of the
     Office of the Federal Register (OFR), found in the Federal
     Register Drafting Handbook.  The Federal Register package
     should include:

      *  The original plus three copies of the preamble/regulation
        (please ensure that the copies have a signature;
      *  Federal Register Checklist, signed by Steering Committee'
        representative or other approving official; and
      *  Typesetting request (EPA form 2340-15)

     For reprints also include EPA form 2340-1

         OFR follows strict publication requirements, so even minor
    problems can delay publication.  The most common problems causing
    delay are:  errors in codification; unclear graphs, charts, and
    tables; providing too few copies; unclear signatures; not
     including a typesetting request; and not preparing the Federal
     Register Checklist.

Operation:  If your package is reviewed in Red Border you must
    submit the Federal Register package with your Red Border
    package.  In any case, direct all Federal Register packages
    to  EPA 's Federal Register Officer, Regulation Management
    Branch (RMB), Room 415WT, 382-7205.  RMB reviews documents
     for consistency with OFR requirements, then transmits them
    to OFR for publication.  Documents usually appear in the
    Federal Register within four days after RMB approves them.
    However* if a document is particularly long (250 pages or
    more), and contains many tables, graphs, and pictures, publi-
    cation will take at least one week.

         RMB PROVIDES A LISTING
    ON  E-MAIL THAT DESCRIBES ALL DOCUMENTS SENT TO THE FEDERAL
     REGISTER OR PUBLISHED WITHIN THE PAST FIVE DAYS.  To access
    this system simply: 1) sign onto E-mail, 2) type PRPOST,  3)
     type FED. REG when "Subj:" appears, 4) read or scan the listing

 See Also;  Federal Register Document Drafting Handbook, available
      the Agency's supply store; Federal Register Checklist avail-
      able from Steering Committee Representatives.

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RG.1-4

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     UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

               I!!   ' WASHINGTON.-D.C.
              '.;*••     .     • . •   .      '   • •        m      tHC ADMIMtSTAHDR
                •*•..••''•     ' .  . .               •
 SUBJECT:   "Ex Part'e"  Contacts in EPA Rulec&,king
             • •••'•«•**••.•   ..."  . •  •   ..   •          .     .  ,
 FROM:   .   The Administrator' V-  ...'.'•         .•••';        ^.    .

 TO:    .   Addressees    .    '         •.        '.    »-•••;     :-
'••••'••     .       -.. •     '     '    '    .    !   '  '  .    •   .-   .   • •   .•
     in this memorandum 1  set-forth 'the guidelines all EPA   '•• •    -'.   :'
 employees should  follow in. discussing  the merits of proposed   • •   :'. . *
 rules  with interested persons outside  the Agency during the    •'.  . . ..-
 period between proposal and promulgation.- The Deputy Administrator  "•
 and I  and our immediate staffs will also observe these guidelines.
                                                          *          • •  • .
  •  ' The  General  Counsel  has recently  informed -yoi1. that such    '     ;-  •' "••
 conversations might result in -a rule being held-illegal if they     "
 took place without notice and  opportunity  for  other interested   '   .
 persons' to participate. .That advice was based on  a recent decision  ..  .".
 of the United States  Court of Appeals  for  the  District of Columbia
 Circuit.   Home Box Office Inc. v. FCC, D.  C. Cir.'  Ko. 75-1230     -  .:. ".;..
 (decided  March 25, 1977).A subsequent opinion by the sane court    •
 has moderated that legal  danger substantially.  'Action for Childr.ens* .    '.
 Television v. FCC, D. C.  Cir.  Ho. 74-2005  (decided July 1, 197?;.    •

    •  However, the legal danger has  not disappeared. .More fundamentally,  •
 I do not  believe .that EPA. should  base  or appear to bkse its regulatory
 decisions on-information or arguments  presented informally that do not
 appear on the public record. .Accordingly, I am establishing the following
 guidelines.    '.•-......-•        .  .   •   .    '           "      **
                                    • .       '.           .•       .".••
                                                 •   **                  •
      Behavior during crucial period between  Proposal and Promulgation

   ; '' During  the period between proposal and  promulgation of a -rule all
 employees may and should be encouraged to respond  to-inquiries about
 the rule; explain' how  it would work,  and  attend public meetings of
 interested groups (such as  trade  association conventions).
       '   .     *•       ..•'•"••'•:           •    •
      During  this period agency employees  may (and  often should) hold
 meetings with interested persons  for. the  purpose of  batter understanding
 any technical scientific and engineering  issues involved or discussing

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 the-broader questions involved.   In all  cases, however, a-written
 summary of the significant points mac's at ths mectinss oust be placed
 in the cogent file.  •                •  •             .'      .  .    •  .
             «              •     .       . •
                                                           .'••••
  -.   This requirement applies  to every forn of discussion with outside-
 interested persons whether'at.a  trade association meeting, at EPA,'or
 over ths telephone as long as  the discussion is significant.  The  .
 memorandum should be  prepared  and forwarded within"two or three days'
 of the meeting at the latest.  All  new data or significant arguments
 presented at the meeting .should  be  reflected in ths Bsrore-ndun;.'
 Discussions of generalities or. simple explanations of how the rule
 v/ould work' need not be  included./     •              "
                          ...             -  •       .          •  •
      I will continue  to explore  frith' the General Counsel's office and
 others whether further  actions to ensure that we provide full notice  •
 and opportunity for com/rent in all  our procedures.are necessary. t .-_


 ADDRESSEES   '

 Deputy.Administrator
 Assistant Administrators         '         /  «/    V ft      \
 Deputy Assistant Administrators                fA1* $&-**••  V
 Office Directors
•Regional Administrators       >
 Associate General Counsels
 Reoional Counsels

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SF.1

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SF.1-1

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                                                         F. H
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON O C 20460


                              AUG 2 5 1986
                                                               O'
                                                               T • * T-, o
MEMORANDUM

SUBJECT;  Revised Policy Framework for State/EPA Enforcement
          Agreements             /

FROM:     A. James Barnet       /.
          Deputy
TO:       Assistant Administrators
          Associate Administrator for Regional Operations
          Regional Administrators
          Regional Counsels
          Regional Division Directors
          Directors, Program Compliance Offices
          Regional Enforcement Contacts


     I am pleased to transmit to you a copy of the Agency's
revised Policy Framework  for State/EPA Enforcement Agreements.
The Policy Framework, originally developed in 1984, along with
program-specific implementing guidance, will continue to serve as
the blueprint for our State/EPA enforcement relationship.  The
revised Policy Framework  integrates new guidance developed since
its original issuance.  It reinforces the Guidance for the FY
1987 Enforcement Agreements Process which I transmitted to you on
April 15, 1986 and should serve as your guide for negotiations
and implementation of the Enforcement Agreements.

     Although the intent  of the revisions was to incorporate new
policy, the process gave  the Agency, with the assistance of the
Steering Cornedttee on the State/Federal Enforcement Relationship,
an opportunity to reassess with the States our original approach.
This process has clearly  reaffirmed that the basic approaches we
put in place in 1984 for  an effective working partnership are
sound and that all parties continue to be committed to its effective
implementation.

     The revisions incorporate into the Policy Framework adden.M
developed over the past two years in the areas of oversight of
State civil penalties, involvement of the State Attorneys General

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                               -2-


in the Enforcement Agreements process, and implementation of
nationally managed or coordinated cases.  The revisions also
reflect, among other things, some of the points that have been
emphasized in my annual guidances on the Enforcement Agreements
process, the Evaluation Report on Implementation of the Agreements,
and the Agency's Criminal Enforcement and Federal Facilities
Compliance draft strategies.

     I am firmly committed to full and effective implementation
of the Policy Framework and am relying on your continued personal
attention to this important effort.  I plan to review the Region's
performance in implementing the revised Policy Framework and the
program-specific guidance, particularly the "timely and appropriate"
enforcement response criteria, as part of my semi-annual regional
visits.

     I encourage you to share the revised Policy Framework with
your State counterparts.

Attachments

cct  Steering Committee on the State/Federal Enforcement
       Relationship

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POLICY FRAMEWORK FOR STATE/EPA
    ENFORCEMENT AGREEMENTS
                        August 1986
                (originally issued June 1934)
                OFFICE OF ENFORCEMENT
                  AND COMPLIANCE MONITORING

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     POLICY FRAMEWORK FOR STATE/EPA ENFORCEMENT AGREEMENTS1/
     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 noncompliance."  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 sensi-
tive 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, EPA called for
State-specific enforcement agreements to be in place beginning
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 implementing
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
Governors' 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 ajj annual basis.  The Policy Framework will be subject
to periodic review and refinement.  Originally issued on June 26,
1934, the Policy Framework has been updated to reflect additional
guidance developed since that ti>ne.
£_/ The term Enforcement  Agreement is  used throughout to describe the
   document(s), be  it  an existing grant,  SEA,  MOU,  or separate
   Enforcement Agreement,  which  contains  the provisions outlined in
   the Policy Framework  and  related media-specific  guidance.   (See
   p.4 for description of form of agreement.)

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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.
 Although  enforcement agreements are not required for States which
 do not have delegated or approved programs, Regions are encouraged
 to apply  to these States certain policies and provisions where
 relevant, particularly advance notification and consultation
 protocols.  The Policy Framework is divided into six sections, to
 address the following key areas:
                *.
 A.  State/Federa4 Enforcement "Agreements";  Form, Scope and
    Substance  (pages 4-7)

    This  section sets forth for Regions and States developing
    enforcement agreements, the areas that should be discussed,
    priorities, and the degree of flexibility that Regions have in
    tailoring national guidance to State-specific circumstances,
    including the form and scope of agreements.

B.  Oversight Criteria and Measures;  Defining Good Performance
    (pages 8-17)

    This  section is primarily addressed to EPA's national programs,
    setting forth criteria and measures for defining good performanr-
    generally applicable to any compliance and enforcement program
    whether administered by EPA 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
    15,  pages 11-13.

C.  Oversight Procedures and Protocols (pages 18-20)

    This  section sets forth principles for carrying out EPA's
    oversight responsibilities, including approach, process and
    follow-up.

D.  Criteria for Direct Federal Enforcement in Delegated States
    (pages 21-25)

    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 th« 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  26-30)

    This  section sets forth EPA's policy of  "no surprises" and
    what  arrangements must be made with each State  to ensure  the

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    policy is effectively carried out by addressing planned
    inspections, enforcement actions, press releases,  dispute
    resolution and assurances that publicly reported performance
    data is accurate.

F.  State Reporting  (pages 31-35)

    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.

Appendices

    Appendix A:  Annual priorities and implementing guidance
    provides a list of the annual priorities for implementing the»
    enforcement agreements and 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.

    Appendix B:.  Addendum to the Policy Framework on "Implementing
    Nationally Managed or Coordinated Enforcement Actions,"
    issued January 4, 1985.

    Appendix C:  Guidance on "Division of Penalties with State
    and Local Governments," issued October 30, 1985.

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A. STATE/FEDERAL ENFORCEMENT AGREEMENTS:  FORM, SCOPE, AND SUBSTANCE
     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.  Where there are new documents the
appropriate linkage should be made to grants and SEA's as applicable.
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.  Regions should discuss with the States
at an early stage in the planning process their views on both the
form and substance of the agreements.  Once the basic agreements.
are in place, Regions should consider most aspects of the written
agreements as multi-year, minimizing the need to renegotiate the
agreements each year.  Regions should conduct an annual review
with the States to identify needed revisions and additions to the
agreements to address identified problems or reflect further national
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;  Good 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.

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 However,  Regions  and  States  are  not  expected  to duplicate nationa'
 Program guidance  in their  agreements  — we are not  looking  for
 lengthy documents.  Written  agreements resulting  from these
 discussions  could 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.  Although not
 required  for non-delegated or unapproved programs, Regions are
 encouraged to apply certain  policies  and provisions where relevant,
 particularly advance  notification and consultation protocols.

     This Policy  Framework and the resulting  State/EPA Enforcement
 Agreements are  intended  to enhance enforcement of State and
 Federal environmental laws.   Each agreement should be careful
 to note that nothing  in  them or  this  Policy Framework constitutes
 or creates a valid defense to regulated parties in violation of
 environmental statutes,  regulations or permits.

 3.  Parties  to  the Agreements and Participants in the Process.

     It is important to  involve  the appropriate State and regional
personnel early in the agreements process.  In the Regions, this
means involving the operating level program staff and the Regional
Counsel staff along with top management; and  in the States it
means the participation of all the organizational units responsible
 for making enforcement work,  e.g., State program staff, those
responsible  for oversight  of field operations, staff attorneys,
and the State Attorneys General  (AG).  The State agency should
have the lead in  establishing effective relationships with the
State AG or  State legal staff, as appropriate.  The Regions
should ensure that there is  adequate  communication and coordination
with these other  participants in the  enforcement process.  States
are strongly encouraged  to commit advance notification and
consultation procedures/protocols between the State agency and
the State AG (or  State legal staff, as appropriate) to writing.
The Region should seek to  incorporate these written protocols
into the State/EPA Enforcement Agreements (See discussion on
pages 17 and 26-27).
          *
4.  What Flexibility do  Regions  Have?

     Regions must be allowed substantial flexibility to tailor
agreements to each State,  as the agreements process is intended
to be based  upon  mutual  understandings and expectations.  This
flexibility  should be exercised  within th« framework of national
program policy  and the Agency's  broad objectives.   Specifically,

     a. Oversight Criteria;

Oversight criteria would generally be provided in national
program guidance  but  Regions should  tailor their  general oversight
to address environmental and other priorities in  the Region or
State, and other  specific  areas  of concern that are unique  to
an individual State,  including any issues raised  by the  scope
of State enforcement  authorities, unique technical problems
available expertise,  and areas targeted  for  improvement.

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     In addition,  Regions and States should adapt national
timely and appropriate enforcement response criteria  to State-
specific circumstances to fit State authorities and procedures
as follows:

     (i) 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  legal
     procedures.  Such adjustment can be important particularly
     where the proposed enforcement action cannot possibly  take
     place within the proposed timeframes or where a  State
     chooses to -address problems more expeditiously than the
     Federal guidelines.  The trigger points should be realistic
   .  expectations, but within modest variance from the national
     goals.  Other adjustments should not be made solely because
     a State program consistently takes longer to process these
     actions due to constraints other than procedural require-
     ments, 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.  (See discussion in Section B, p.13)

     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 point*  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 appro-
     priate remedy.

     (ii) Appropriate Enforcement Response;

     (a) Choice of response:  National medium-specific program
     guidance applicable to State programs on appropriate
     enforcement response should be followed  (See Appendix A).
     There is usually sufficient flexibility within such
     guidance to allow the exercise of discretion on how best
     to apply the policies to individual cnses.  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 this guidance not be altered.

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      .(b)  Definitions of  formal enforcement actions;  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.  National program guidance
      setting  forth consistent criteria for this purpose should
      be followed,  pursuant to the principles listed in Section B,
      pages 11-12.

      (c) Civil Penalties and Other Sanctions:  Program guidance
      must also be  followed on where a penalty is appropriate.
      Regions have"  the flexibility to consider other types of State
   :•   sanctions that can be used as effectively as cash penalties
      to create deterrence, and determine how and when it might be
      appropriate to use these sanctions consistent with national
      guidance.  Regions and  States should reach understanding on
      documentation to evaluate the State's penalty rationale.
      Maximum  flexibility in  types of documentation will be
      allowed to the State.

5.  Procedures and Protocols on Notification and Consultation;

      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.

6.  State-Specific Priorities:

      In addition,  while of necessity EPA must emphasize commitments
by States to address significant noncompliance 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.  Regions should discuss the State's perspective
on both its own and national priorities, and take into account
State priorities to the extent possible.

7.  What Does it Mean to Reach Agreement?

      To the cxTtent possible, these agreements should reflect mutual
understandings and expectations for the conduct of Federal and"
State enforcement  programs.  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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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, bas«d 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 medium-specific programs.
The following outlines the criteria and measures that form
the 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 adminis-
tering 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 or other relevant information on
 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'a 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 t2  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 t3  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 noncompliers including
     the use of self-reported data, citizen complaints and
     historic compliance patterns.  The strategy will be
     assessed on whether it embodies the appropriate mix 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
     document evidence needed to 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 « strategy for and implement quality assurance
     procedures, with sufficient audits and follow-up action
     to ensure the integrity of self-reported data.


CRITERION »4  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 noncompliers to compliance.
 The  use of lists of  significant  violators and specific commitments
 to track and resolve significant noncompliance should be
part of the  planning process of  the  administering agency,
and, between States  and  Regions.   The lists should be developed
in consultation  with the States  and  continually updated each
fiscal year  and  sources on it tracked through to final physical
compliance.

CRITERION »5  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

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                                                          12

       either  compliance has been achieved or *n administrative
       enforcement  action has been  taken  (or a  judicial referral
       has  been  initiated,  as appropriate) that, at a minimum:

       *  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;

       *  Requires  specific corrective action,  or specifies a
         desiced result that may be  accomplished however the
         recipient chooses, and specifies a timetable for
         completion;

       "  May  impose  requirements in  addition to ones relating
         directly  to correction (e.g., specific monitoring,
         planning  or reporting requirements);  and

       '  Contains  requirements that  are  independently enforce-
         able without having to prove original violation and
         subjects  the person to adverse  legal  consequences
         for  noncompliance.

     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,
         taking  into  account the fact that the  administrative
         hearing process and the State Attorney General's actions
         are not within the direct  control of the administering
         agency.£/  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
         timef raines,  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.
_See p.  17,  26-27,  regarding the State Agency's responsibilities
"for coordinating with the State Attorney General or other
 legal  staffs.

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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  timeframes are establishes:
 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
 timeframes  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
 •cope 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 timeframes 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 noncompliers.  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  choices of appropriate  response are to be defined
within the  constraints of  national  program guidance 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 noncompliance
and fairne««; 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  noncompliance.  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  (see
          criteria  listed above)  or  judicial referral.

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                                                              14

       2.  Because of the need to create a strong deterrence
           to noncompliance,  it is important to assess  penalties
           in certain cases,  and only certain types of  enforcement
           actions 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.  (See Criterion 16  below.)

       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 might 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 t 6  Appropriate Use of Civil Judicial and  Administrative
  Penalty and Other Sanction Authorities to Create Deterrence-*/

  1.  Effective Use of Civil Penalty Authorities and Other  Sanctions;

       Civil penalties and other sanctions play an important  role in
  an effective enforcement program.  Deterrence of noncompliance   -
  is achieved through:  1) a credible likelihood of detecting a
  violation, 2) the speed of the enforcement response,  and  3) the
  likelihood and severity of the sanction.  While penalties or
  other sanctions are the critical third element in creating
  deterrence, they can also contribute to greater equity among
  the regulated community by recovering the economic benefit  a
  violator gains from noncompliance over those who do comply.

       Effective State and regional programs should have a  clear  plan
  or strategy for how their civil penalty or other sanction
  authorities will be used in the enforcement program.   At  a
  minimum, penalties and/or sanctions should be obtained where
  programs have identified that a penalty is appropriate (see
  Criterion 15 above).

       The anticipated use of sanctions should be part of the
  State/EPA Enforcement Agreements process, with Regions and
  States discussing and establishing how and when the State
  generally plans to use penalties or other approaches where
  some sanction is required.
•3/Excerpts from the Policy on "Oversight of State Civil Penalties"
  2/28/86.  The focus of the policy is on both civil judicial and
  civil administrative penalties, and does not cover criminal
  penalties.

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                                                              15
        EPA generally prefers the use of cash penalties  to other
   types of sanctions.^/  However,  there may be other sanctions
   which are preferable to cash penalties in some  circumstances.
   In particular,  States may have a broader range  of  remedies  than
   those available at the Federal level.  Examples of other sanctions
   may be:   pipeline severance (UIC),  license revocation  (FIFRA)
   or criminal  sanctions including  fines and/or incarceration.
   National program guidance should clarify in general terms how
   the use  of other types of sanctions  fits into the  program's
   penalty  scheme  at the Federal and State levels,  e.g..  whether
   they are substitutes for or mitigate a cash penalty.£/  In
   any case,  States-are urged to use cash penalty  authorities  in
   those cases  for Which a penalty  is  "appropriate" and/or  to  use
   other sanctions pursuant to these agreements with  the  Regions.

        EPA encourages  States to develop civil administrative
   penalty  authority in addition to civil judicial penalty  authority,
   and to provide  sufficient resources  and support for successful
   implementation  where they do not already have this authority.
   In general,  a well designed administrative penalty authority
   can provide  faster and more efficient use of enforcement
   resources, when compared to civil judicial authorities.  Both
   civil  judicial  and administrative penalty authorities  are
   important, complementary,  and each should be used  to greatest
   advantage.   EPA is similarly seeking to gain administrative
   penalty  authority for those Federal  programs which do  not
   already  have it.   To support State efforts to gain additional
   penalty  authorities,  EPA will share  information collected on
   existing State  penalty authorities and on the Federal  experience
   with  the development and use of  administrative  authorities.

   2.  Oversight of Penalty Practices;

        EPA Headquarters will oversee Regional penalties  to
   ensure Federal  penalty policies  are  followed.   This oversight
   will  focus both on individual penalty calculations and regional
   penalty  practices and patterns.
**/In limited circumstances where  they meet  specified  criteria,  EPA
  and DOJ policies and procedures allow for alternative  payments  —
  such as beneficial projects which have economic  value  beyond
  the costs of returning  to  compliance  — in mitigation  of
  their penalty  liability.
^/Until program-specific  guidance is developed to  define the
  appropriate use of civil sanctions, the Region and  State  should
  consider whether the sanction  is comparable to a cash  penalty
  in achieving compliance ind deterring noncompliance.   Costs
  of returning to compliance will not be considered a penalty.
  Criminal authorities, while not clearly comparable  to  cash
  penalties, can be used  as  effectively as  cash penalties to
  create deterrence in certain circumstances.

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                                                           16
     EPA will review state penalties in the context of the state's
overall enforcement program not merely on its use of cash penalties.
While individual cases will be discussed, the program review will
more broadly evaluate how penalties and other sanctions can be
used most effectively.  The evaluation will consider whether the
penalties or other sanctions are sought in appropriate cases,
whether the relative amounts of penalties or use of sanctions
reflect increasing severity of the violation, recalcitrance,
recidivism etc., and bear a reasonable relationship to the economic
benefit of noncompliance (as applicable) and whether they are
successful in contributing to a high rate of compliance and
deterring noncompliance.  EPA may also review the extent to which
State penalties have been upheld and collected.

3.'  Development and Use of Civil Penalty Policies:

     EPA Regions are required to follow written Agency-wide
and program specific penalty policies and procedures.

     EPA encourages States to develop and use their own State
penalty policies or criteria for assessing civil penalties.
The advantages of using a penalty policy include:

        leads to improved consistency;
        is more defensible in court;
        generally places the Agency in a stronger position to
        negotiate with the violator;
        improves communication and support within the
        administering agency and among the agency officials,
        attorneys and judges especially where other organizations
        are responsible for imposing the penalty;
        when based on recoupment of economic benefit and a
        component for seriousness, deters violations based
        upon economic considerations while providing some
        equity among violators and nonviolators; and
        can be used by judges as a basis for penalty decisions.

EPA encourages States to consider EPA's penalty policies as
they develop their own penalty policies.

4.  Consideration of Economic Benefit of Noncompliance;

     To remove incentives for noncompliance and establish deterrence
EPA endeavor*, through its civil penalties, to recoup  the economic
benefit the violator gained through noncompliance.  EPA encourages
States to consider and to quantify where possible, the economic
benefit of noncompliance where this is applicable.  EPA expects
States to make a reasonable effort to calculate economic benefit
and encourages States to attempt to recover this amount in  negoti-
ations and litigation.  States may use the Agency's computerized
model (known as BEN) for calculating that benefit or different
approaches to calculating economic benefit.  EPA will  provide
technical assistance to States on calculating  the economic  benefit
of noncotipli^nce, and has made the BEN computer model  available
to States.

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                                                       17


CRITERION t?  Accurate Recordkeeping and Reporting

     A quality program maintains accurate <*nd up-to-date files
and records on source performance and enforcement responses
that are reviewable and accessible.  All recordkeeping 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 an<3
accurate to support effective program evaluation and priority-
setting.

     State recordkeeping should include some documented rationale
for the penalties sought to support defensibility in court, enhance
Agency's negotiating posture, and lead to greater consistency.
These records should be in the most convenient format for adminis-
tration of the State's penalty program to avoid new or different
recordkeeping requirements.

CRITERION «8  Sound Overall Program Management

     A quality program should have an adequate level, mix 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 may 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, especially the State Attorneys General or other appropriate
State legal organizations.  The State Agency should,  at a minimum,
ensure that the State AG, internal legal counsel, or  other appropriate
government legwl staff are consulted on the enforcement commitments
the State is making to EPA to assure that the level of legal
enforcement support and associated resources needed to accomplish
the agrced-upon goals are secured.  This coordination should
result in timely review of initial referral packages, satisfactory
settlement of cases, as appropriate, timely filing and prosecution
of cases, and prompt action where dischargers violate consent
decrees.  (See Section E, p. 26-27).

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                                                                  18
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.   On May 31,
1985, the Agency issued the Policy on Performance-Based Assistance,
which contains guidance on how Regions should oversee  assistance
agreements.  Both of these policies call for oversight with a
problem-solving orientation with clear identification  of actions
needed to correct problems or recognize good 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.  Administering
agencies should identify strengths and weaknesses of the State and
Federal programs and develop mutual commitments to correct problems.

     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 tingle incident or a general problem with the
     State program.

  d. The States should be given an opportunity to formally comment
     on EPA's performance.  Regions should provide information  to
     the States that is available on  its performance  against the
     national standards, including their performance  on meeting the
     "timely and appropriate" criteria, as well as their performance
     on commitments to that State.

  e. EPA should give States sufficient opportunity to correct ider.ti*ie-
     problems, and take corrective action pursuant to the criteria  for
     direct enforcement established in Section D.

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                                                              19


   f.  EPA should use the oversight  process  as  a means of  trans-
      ferring successful regional and  State approaches  fro-n 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 identifie-3
      in advance, with some provision  for random review of a percentage
      of other files if necessary.

  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 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 performance 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 regulatory  requirements;

  b. reduce the frequency and number  of oversight inspections;
     and/or

  c. allow  the program more  flexibility in applying resources
     from an  Almost exclusive focus on national priorities
     e.g., aajor 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;

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                                                        2'J
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. track problem categories of cases more closely;

h. 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

i. consider de-delegation if there is continued poor performance.

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                                                             21


D.  CRITERIA FOR DIRECT FEDERAL ENFORCEMENT IS DELEGATED STATES


     This section addresses criteria defining circumstances under
which approved State programs might expect ilirect 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 in Approved States?

     A clear definition of roles and responsibilities is essential
to an effective partnership, since EPA has parallel enforcement
authority under xts statutes whether or not a State has an approve 1
or delegated prog'ram.  As a matter of policy in delegated or
approved programs, primary responsibility for action will reside
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 noncompliance beyond what a State may
need to do to achieve compliance in an individual case or to
support its own procram.

     Because States have primary responsibility and EPA clearly
does not have the resources to take action on or to review in
detail any and all violations, EPA will circumscribe its actions
to the areas listed below and address other issues concerning
State enforcement action in the context of its broader oversight
responsibilities.  The following are four types of cases EPA may
consider taking --direct enforcement action where we have parallel
legal authority to take enforcement action:

      a. State requests EPA action
      b. State enforcement response is not timely and appropriate
      c. National precedents (legal or program)
      d. Violation of EPA order or consent decree

      In deciding whether to take direct enforcement in the above
      types of cases, EPA will consider the following factors:

      - Cases specifically designated as nationally significant
        (e.g., significant noncompliers, explicit national or
        regional priorities)
      - Significant environmental or public health damage or
        risk involved
      - Significant economic benefit gained by violator
      - Interstate issues (multiple States or Regions)
      - Repeat patterns of violations and violators

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                                                              22


 How these  factors  are  applied  for  the  various types of cases is
 discussed  below.

      a.  State  requests  EPA  action;

      The State  may request EPA to  take the enforcement action for
 several reasons including but  not  limited to:  where State authority
 is  inadequate,  interstate issues involving multiple States which
 they  cannot resolve by themselves, or  where State resources or
 expertise  are inadequate, particularly to address the significant
 violation/violators in the State in a  timely and appropriate
 manner.  EPA should honor requests by  States for support in
 enforcement.  EPA  will follow  its priorities in meeting any such
 requests for ass-lstance, considering significance of environmental
 or public  health damage  or risk involved, significant economic
 benefit gained  by  a violator,  repeat patterns of violations and
 violators.  Based  on this general guidance, each program office
 may develop more specific guidance on  the types of violations on
 which EPA  should focus.  Regions and States are strongly encouraged
 to plan in advance for any such requests for or areas needing EPA
 enforcement assistance during  the State/EPA Enforcement Agreements
 Process.

     b.  State  Enforcement is  not  "Timely and Appropriate"

     The most critical determinant of  whether EPA will take direct
 enforcement action in  an approved State is whether the State has
 or will take timely and appropriate enforcement action as defined
 by national program guidance and State/Regional agreements.  EPA
 will defer to State action if  it is "timely and appropriate"
 except in  very  limited circumstances:  where a State has requested
 EPA action (a,  above), there is a national legal or program
 precedent which'cannot be addressed through coordinated State/Federal
 action (c,  below), EPA is enforcing its own enforcement action
 (d, below)  or the  case of a  repeat violator, where the State
 response is likely to  prove  ineffective given the pattern of
 repeat violations  and  prior history of the State's success in
addressing past violations.
         «
     (i)  Untimely State Enforcement Response:

     If a  State action is untimely, EPA Regions must determine
after advance notification and consultation with the State whether
 the State  im moving expeditously to resolve the violation  in an
 "appropriate" manner.

     (ii)  Inappropriate State Action:

     EPA may take  direct action if the State enforcement action
 falls short of  that agreed to  in advance in the State/EPA  Enforce-
 ment Agreements as meeting the requirements of a formal enforcement
 response (See Section  B, page  13)  where a  formal enforcement
 response is required.  EPA may also take action if the content of
 the enforcement action is inappropriate, i.e., if remedies are

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                                                              23


clearly inappropriate to correct the violation, if compliance
schedules are unacceptably extended, or if there is no appropriate
penalty or other sanction.

      (iii)  Inappropriate Penalty or other Sanction;

      For types of violations identified in national program
guidance as requiring a penalty or equivalent sanction, EPA will
take  action to recover a penalty if a State has not assessed a
penalty or other appropriate sanction.  EPA generally will not
consider taking direct enforcement action solely for recovery of
additional penalties unless a State penalty is determined to be
grossly deficient 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.  EPA will
consider whether that State's penalty bears any reasonable relationship
to the seriousness of the violation, the economic benefit gained
by the violator (where applicable) and any other unique factors
in the case.  While this policy provides the basis for deciding
whether to take direct Federal action on the basis of an inadequate
penalty, this issue should be discussed in more detail during the
agreements process to address any state-specific circumstances
and procedures established to address generic problems in specific
cases.  Where identified in national guidance and agreed to      -
between the Region and State, other sanctions will be acceptable
as substitutes or mitigation of penalty amounts in these considerations.

      Program-specific national guidance on expectations for State
penalty assessments may be developed *in consultation with the
States and applied for determining adequacy of penalty amounts
after being applied in practice in EPA Regions.  It is the current
expectation of Agency managers that EPA will continue to gain
experience in implementing its own penalty policies before national
programs consider such guidance.  Thus, in the near term a determination
that a penalty is "grossly deficient" will remain a judgment call
made on a case-by-case basis.
         «
     c.  National Precedents

     This is the smallest category of cases in which EPA may
take direct enforcement action in an approved State, and will
occur rarely in practice.  These cases are limited to those of
first imprsjsjcion in law or those 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.  Some of these cases may most appropriately
be managed or coordinated at the national level.  Additional
guidance on how potential cases will be identified, decisions
made to proceed and involvement of States and Regions in that
process, has been developed as Appendix B to this document.

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                                                           24


      d.   Violation  of EPA order  or  consent  decree;

      EPA places  a high priority  on  following  through on enforcement.
 actions  until  final compliance  is achieved.   If EPA has taken
 administrative,  civil or  criminal judicial  enforcement in  a
 delegated or approved State,  EPA will  take  any follow up enforcement
 action on violations  of those agreements or orders to preserve
 the  integrity  of Federal  enforcement actions.

 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.  In all
 of these  circumstances, where EPA may  overfile a State action on
 the  basis that it is  not  timely  and appropriate 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.  This is parti-
 cularly important since it is EPA policy that once a case has
 been commenced,  EPA generally will not withdraw that case  in
 light of  subsequent or simultaneous State enforcement action.

      In particular, 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 or compliance has  been a continuing
 problem.

     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
          lack* 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.   Involve States in creative settlements and to participate
          in case development  —  so  that the credibility of States
          as the  primary actor is perceived  and realized.

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                                                           25


     d.  Arrange for c|ivision of penalties with State and local
         governments"''  (to the extent they participate in Federal
         enforcement actions, and where permitted by law) — to
         enhance Federal/State cooperation in enforcement.

     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.

     f.  Keep States continually apprised of events and reasons
         for Federal actions —to avoid conflicting actions
         an
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                                                              26
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.

     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 EPA
         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.

     Some specific provisions need to be made to address the
     following:

     a. Advance Notification of State Attorneys General or other
        legal staff of potential EPA enforcement actions7/

        While EPA's primary relationship with the State is and
        should continue to be with the State agency that has
        been delegated or been approved to administer the
        programs, EPA needs to ensure that all parties in the
ri In some States there are legal organizations that have direct
   enforcement authority which by-passes the State AG, e.g.,
   District Attorneys, internal legal counsel, Governor's
   General Counsel.  In these instances, this guidance would
   apply to these other organizations.

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                                                      27


 State  affected by  a pending  EPA enforcement action  receive
 appropriate  advance notification.   In addition, when EP^
 negotiates commitments  each  year with the State to  addrass
 specific  significant violators, it  is important that all
 the parties  affected by these commitments are aware of the
 legal  enforcement  support and associated resources  needed
 to accomplish these goals.

 As part of the State/EPA Enforcement Agreements process,
 the Region should  discuss with the  State agency their
 internal  procedures and/or protocols for advance notification
 and consultation with the State AG  or other legal staff.
 The State> agency is responsible for assuring that the State
 AG or  other  legal  staff are properly notified and consulted
 about  planned Federal enforcement actions and/or enforcement
 initiatives  on an  ongoing basis.  States are strongly
 encouraged to commit advance notification and consultation
procedures/protocols reached between the State agency and
 the State AG (or State,legal staff, as appropriate) to
writing.  The Regions should seek to incorporate these
written protocols  into  the State/EPA Enforcement Agreements.

The Region should  do everything possible to wor'< through
the State agency on the  issue of communicating with the
State AG or  other  legal  staff on potential EPA enforcement
actions as well as other matters.  However, if the State
agency does  not have a  workable internal procedure and if
problems persist,  the Region, after advance notification
and consultation with the State agency, may make arrangements
 for directly communicating with the State AG or other legal
staff.

The Region and State agency should discuss how the outside
legal organizations will be consulted on the commitments the
State  is making to EPA  on addressing significant violators
each year.   These  consultations are intended to clarify the
legal enforcement  support needed to accomplish these goals.
Tttis is particularly important for  those State agencies
dependent upon the State AG or other outside legal organizations
to implement their enforcement progran.

State agencies are also encouraged  to notify these  organi-
zations of the anticipated timing of the negotiations each
year with EPA on the Enforcement Agreements, grants, and
related documents.

Region* are  encouraged  to work with their State agencies to
set up a  joint meeting  at least annually to which all parties
are invited—the program and legal  staffs of both the £?*
Region and the State agency(s), plus U.S. Attorney  staff
and State AG staff—to  review EPA's enforcement priorities
and recent program guidance.

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                                                              2S


      b.  Federal  Facilities

         Federal  facilities  may  involve  a  greater or different
         need  for coordination,  particularly where  the Federal
         facilities  request  EPA  technical  assistance or where EPA
         is  statutorily  required to  conduct inspections (e.g.,
         under RCRA).  The advance notification and consultation
         protocols in  the State/EPA  Enforcement Agreements should
         incorporate any of  the  types  of special arrangements
         necessary for Federal facilities.  The protocols should
         also  address  how the State  will be involved in the review
         of  Federal  agency A-106 budget  submissions, and include
         plans for a joint annual review of patterns of compliance
         problems at Federal facilities  in the State.

      -c.  Criminal Enforcement

         Although the  Policy Framework does not apply to the
         criminal enforcement program, to  improve the coordination
         with  States on  criminal investigations and assist the
         States in their criminal enforcement efforts the Regions
         should discuss  with States  any  affirmative plans for
         cross-referrals and cooperative criminal investigations.
         Such  discussions should include the Special Agent in
         Charge and  appropriate  program  staff familiar with criminal
         enforcement.                                             -

      In  cases where other States or jurisdictions  may be directly
and materially affected by  th«  violation, i.«., 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 parti-
cularly  important for hazardous waste cases in which regulatees
often operate across  State  boundaries.

      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, wfTere 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

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                                                              29


 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 Veep one
          another  current  on the status of enforcement actions
          against  noncomplying facilities.  Regularly scheduled
          meetings or conference calls at which active and
          proposed cases and inspections are discussed may
          achieve  these purposes.

     3.   Sharing Compliance and Enforcement Information

     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.  The Regions
should also establish mechanisms for sharing with the States
copies of reports generated with data submitted by the Regions
and States, including comparative data — other States in the
Region and across Regions.

     4.  Dispute Resolution

     The  Region  and  State should agree in advance on a process
for resolving  disputes* especially differences in interpretation
of regulations or program goals as they may affect resolution of
individual instances of noncompliance.  As stated in the policy
on Performance-Based Assistance, the purpose in laying out a
process by Which  issues can be surfaced quickly up the chain of
command in both  the  Regions and States is to ensure that
significant problems receive the prompt attention of managers
capable of solving these  problems expeditiously.

     5.   Publicizing Enforcement Activities

     EPA has made commitments to account publicly for its
compliance and enforcement  programs.   It is EPA's policy to
publicize all  judicial enforcement actions and significant
administrative actions to both encourage compliance and  serve
as a deterrent to noncompliance.

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     While State philosophies on these matters may vary,  the
Region and State should discuss opportunities 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.  Regions should consult with the State on any
enforcement related EPA press release or other media event
which affects the State.  To the extent possible, the State
should be given an opportunity to join in the press release or
press conference if it has been involved in the underlying
enforcement action.  Further, EPA generated press releases and
public information reports should acknowledge and give credit
to relevant State actions and accomplishments when appropriate.

     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 may 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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                                                            31
F.  STATE REPORTING
     This section reviews key reporting and recordkeeping
requirements for manage.'ient data and public reporting on
compliance and enforcement program accomplishments.  It also
addresses relnte-l reporting considerations such as reporting
frequency and quality assurance.

1.  Overview

     A strong and well managed national compliance and enforce-
merit 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.
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
co-npliance and enforcement program*.
               :
     Five measures of compliance and enforcement performance
will be used 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 .nost significant violations.  The Agency is working
diligentl^ to establish clear and reliable indicators for
these two measures, recognizing the desirability of managing
based as much « 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 the near
term.

     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 fielJ 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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                                                             32


     In addition to these five reporting requirements, the
Agency is introducing two new areas of recordkeeptng require-
ments to support general management oversight of the national
enforcement effort:  (1) success in neeting new management
milestones for defining timely and appropriate enforcement
action; and (2) the level of penalties assessed and collected.
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 level* can be measured according to several
     different approaches.  National program guidance should
     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 compliances 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 should be
     compiled jointly by the 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 Xeeps 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 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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                                                        33
  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.

  d1. 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 caseji 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 mr« filed in court in recognition of their sensitive
     nature.

3.  Recordkeeping for Performance Measurement

     There are two performance areas for which States and
Regions will be asked to retain accessible records and
summary datat (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.

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                                                           34


      a-   Timeliness  and  appropriateness  of  State and  Federal
          response  to violations  is  the principal subject of
          new guidance being  developed by each program.
          Administering agencies  need to  ensure that adequate
          tracking  systems  are  in place to assess the  timeliness
          and appropriateness of  actions  on  an ongoing basis.
          Implementation  of timely and appropriate criteria
          should  also be  closely  monitored to ensure that sources
          subject to  the  guidance are properly identified and
          made part of the  covered universe.  The Program Offices,
          in  conduction with  the  Regions,  are expected to report
          periodically on both  EPA's and  the States' performance
          in  meeting  the  timely and appropriate criteria and to
          periodically reassess the criteria.  As programs gain
          experience,  they  should consider whether "timeliness"
          should  be measured  quantitatively as a performance
          accountability  measure  or qualitatively through program
          audits.

     b.   Penalty programs  are  essential  to the effective working
          of  an environmental enforcement  program.  Sufficient
          documentation needs to  be kept  to enable the Region
          to  evaluate  whether the State obtained a penalty
          where appropriate,  the  State's  rationale for the penalty,
          and, where appropriate, a calculation of any economic   *
          benefit of  noncompliance gained  by the violator.
          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 ami
          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.
          *
4.  Future Improvements  in Enforcement Management Information
    Systems   ^

     EPA  i» working  to fill  the  gaps in  its current enforcement
management information and is  developing  a guide to State and
national  program managers  in setting priorities for future
design and development work  on these systems.

     In the  near term, EPA is  exploring  ways to use the current
management systems to better reinforce timely and appropriate
enforcement  response  and follow-through  on  enforcement actions.
EPA Program  Offices,  in  consultation with Regions and States,
should develop ways  to better  measure and report on timeliness
of enforcement actions.  The focus  for follow-through will bo
on tracking  compliance with  EPA  consent  decrees and administrative
orders.   State follow-through  will  be part  of general regional
oversight.

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                                                               35


     Other potential enforcement management indicators,  such as
the deterrence effects of enforcement, the quality of enforcement
actions, an extended compliance picture,  and overall environment!
results of enforcement actions, are longer term issues to be
considered after the near-term issues are addressed.

5.  Reporting Considerations

     There are three 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
         encompasses 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 formal reporting should be done on a
         quarterly basis unless there is a specific performance
         problem in a State or compelling program need for more
         frequent (e.g., monthly) reporting, which may be necessary
         on an interim basis due either to their newness or their
         importance.  A quarterly reporting frequency is designed
         for oversight purposes.  It is not designed to provide
         for "real time" information, 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, such as
         monthly conference calls, between the Regions and States
         on the progress of key cases of concern.

             iral facility compliance data should be  reported as
              of each program s reporting measures and commitments.
             Regions may also request States to provide additional
         information on Federal facilities compliance status,  if
         needed, and if mutual agreement can be  reached, as part of
         the Enforcement Agreements process.

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                                                                                            APPENDIX  A
EXISTING OK PLANNED NATIONAL GUIDANCE AFFECTING SPATE/EPA ENFORCEMENT AGREEMBTPS
                                                                                   Revised:  0/14/86
Cross-cutting National Guidance;   *  Revised Nolicy Framework for State/Federal Enforcement Agreements—reissued 8/86
                                   *  Agency-wide Policy on Performance-nosed Assistance—issued l>y A
 minor |*>r>iui-j
 (i ssi us I 2/06)
"-FY 85 Initiatives on
 Compliance Monitoring &
 Enforcement Oversight."
 6/29/84

""Final Guidance on PWS
 Grant Program Imple-
 mentation"
 (3/20/84)

"Regs - NIPDWR, 40CFR
 Part 141 and 142.

"DM annual Reporting
 Requirements - "Guidance
 for PUSS Program Report-
 ing Requirements"
 7/9/84

""FY'a 85-86 Strategy for
 Eliminating Persistent
 Violations at Cownunity
 Mater Systems."  Memo
 from Paul Raltay 3/18/85.

"Guidance for the Develop-
 ment of FY 86 PMSS State
 Program Plans and
 Enforcement Agreements"
 (issued 7/3/85)
""Guidance on Timely
 & Appropriate"...
 for Significant Air
 Violators." 6/28/84

""Timely and Approp.
 Enforcement Resfionse
 Guidance" 4/11/86

•National Air Audit
 System Guidelines
 for FY 1986.
 (issued 2/86)

""Guidance on Fed-
 era I ly-Reportable
 Violations." 4/11/86

"Inspection Frequency
 Guidance (Issued
 3/19/85 and
 reissued 6/11/86)

""Final TVjchnical
 Guidance on Review
 and Use of Excess
 Emission Reports"
 Memo from Ed Reich
 to Air Branch Chiefs
 —Guidance for
 Regional Offices
 (issuel 10/5/84)'
""Interim National
 Criteria for a
 Quality Hazardous'
 Maste Management
 Program under
 RCRA."
 (reissued 6/86)

•"RCRA Penalty
 Policy" 5/8/84

*FY 1987 "RCRA
 Implements t ion
 Plan"
 (reissued 5/19/86)

•"RCRA Enforcement
 Response Policy"
 (issued 12/21/84)
 (to be revised by
 12/861

•"Ocnpliance and
 Enforcement
 Program Descrip-
 tions in Final
 Author izat ion
 Application and
 State Enforcement
 Strategies." man?
 from Lee TOOTHS l.o
 RAs.
 (issue. 1 6/12/04)
•Final FY 87
 .Enforcement &
 Certification
 Grant Guidance
 (issue.! 4/13/86)

* Interpretat i v/e
 Rule - FIFRA
 State Primacy
 Enforcement
 Responsibilities.
 4O FR Part 173
 1/5/83.
*FF Com-
 pliance
 Strategy
 (to be
 issued
 10/86)

*FF Prog.
 Manual
 for Imple-
 menting
 CERCLA
 Respmsi-
 bilities
 of Federal
 Agencies
 (.Iraft/
 B5; to  be
 issued  in
                    rization)

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Page 2
NPOES
DRINKING WATER
AIR
                                                                             RCRA
                                                                        FIFRA
                                                                                                              FED FAC
                       'Guidance on FY 86 UIC
                       Enforcement Agrwjments"
                       IGPQ MO (issue.I 6/28/05)

                       •HFY 87 SPMS & OWAS
                       Targets ft* the PWSS
                       Program- (SMC definition)
                       (issued 7/10/86)

                       "Guidance on PY 87 UIC
                       Enforcement Agrenments
                       (Draft issued 7/1/86)

                       •Guidance on PY 87 PWSS
                       Enforcement Agreements
                       (issued 8/0/36)

                       "Guidance on Use of
                       AD Authority under
                       SDMA Amendments
                       (to be issued pending
                         legislation)
                          * "Technical Guidance
                           on the Review and
                           use of Goal Sampling
                           and Analysis Data:"
                           EPA-340/1-85-010.
                           10/30/85 Guidance
                           for Regional Offices
                   'Compliance Moni-
                    toring & Enforce-
                    ment Log - form for
                    recording monthly
                    compliance dabi
                    from States &
                    Regions.     '

                   'Technical Enforcement
                    Guidance on Ground
                    Water Monitoring
                    (Interim Final Aug.
                    1985)

                   "Compliance order
                    Guidance for Ground
                    Mater Monitoring
                    (issued Aug. 85)

                   "Loss of Interim
                    Status Guidance
                    (issued Aug. 85)

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  APPENDIX A;  ANNUAL PRIORITIES AND PROGRAM GUIDANCES


     Annual Priorities for Implementing Agreements
FY 1985:  Given the enormity of the task in the first year,
          3 priorities were established:

          " defining expectations for timely and appropriate
            enforcement action;
          * establishing protocols for advance notification
           • and consultation; and
          '-reporting State data.

FY 1986;  Building on the FY 1985 process, three areas were
          emphasized:

          * expanding the scope of the agreements process to
            cover all delegable programs;
          * adapting national guidance to State-specific
            circumstances; and
          * ensuring a constructive process for reaching
            agreement.

FY 1987;  Continuing to refine the approaches and working
          relationships with the States, three areas are
          to be emphasized:

          " improving the implementation and monitoring of
            timely and appropriate enforcement response with
            particular emphasis on improving the use of
            penalty authorities;

          * improving the involvement of State Attorneys
            General (or other appropriate legal staff) in
            the agreements process; and

          * implementing the revised Federal Facilities
            Compliance Strategy.

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SF.1-2

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GM - 57, was revised on June 20, 1988.  The 1987 version
has been replaced with the 1988 version.

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. O.C. 20460

                               40
                                                          orricc
                                                       THK
MEMORANDUM

SUBJECT:  Guidance for the FY 1989 State/EPA
          Enforcement Agreements process

FROM:     A. James Barnes       l»
          Deputy Administrator^ A*

TO:       Assistant Administrators
          Associate Administrator for Regional Operations
          Regional Administrators
          Regional Counsels
          Regional Division Directors
          Directors, Program compliance Offices


     The attached enforcement agreements guidance for FY 1989
looks to continuing the successes of the State/EPA enforcement
relationship.  It re-emphasizes the need for annual updates
of the enforcement agreements.  It also introduces the regional
enforcement strategies process as a means of addressing state and
regional priorities and reiterates the importance of timely and
appropriate enforcement responses and federal facilities compliance.
There is a new emphasis for FY 1989 on tracking of both state and
federal referred/filed cases, inspector training and development,
and on upfront agreements on penalty sharing.

     The "Revised policy Framework for State/EPA Enforcement
Agreements* remains our blueprint for the State/EPA enforcement
relationship.  States and Regions should reacquaint themselves
with its provisions and focus on fully implementing them,  consistent
with prograa-ipecif ic guidance.

     The recently issued report on the FY 87 Implementation of
the Timely and Appropriate Enforcement Response Criteria highlights
response areas needing increased attention  by Headquarters Program
Offices, Regions, and states.   I encourage  you to read  this report
and work closely within the Regions and Headquarters Program  Offices

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                                -2-


 to  improve  regional  and state performance, tracking of violations
 and enforcement follow-up.   The steering Committee on the state/
 Federal  Enforcement  Relationship  is considering ways to improve
 implementation of the  response  criteria during its meetings in
 1986.  Each Region's performance  in implementing the timely and
 appropriate guidance will continue to be a focus of semi-annual
 regional visits.

     In a continuing effort  to  improve enforcement planning, OECM
 will be developing,  with the program offices, summaries of FY
 1989 enforcement priorities.  These summaries will be available in
 June and will be based on results of the strategic planning sessions
 with the program offices and the  FY 1989 Operating Year Guidance.
 They can assist in developing operating plans among regional
 program divisions, Regional  counsels, and Environmental Service
 Divisions, by identifying shifting emphases in case selection,
 inspection targeting, etc.   The Regions may wish to share these
 enforcement priority summaries  with States as part of the enforcement
 agreements process.

     I remain firmly committed  to full and effective implementation
of the Enforcement Agreements process and am relying on your
 continued personal attention to this important effort.

Attachments

cc:   Steering Committee on the  State/Federal
      Enforcement Relationship
     Regional Enforcement Contacts

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                                                       ATTACHMENT 1
GUIDANCE FOR IMPLEMENTING THE FY 1989 ENFORCEMENT AGREEMENTS  PROCESS


1.  Maintaining the Enforcement Agreements Process

     The process for State/EPA enforcement agreements has been
in place for over four years and has led to greater clarity of
the roles and responsibilities between Regions and States and to
more effective enforcement — as our enforcement data for the
last two years indicate.  The revised "Policy Framework for
State/EPA Enforcement Agreements," issued in August 1986, continues
to serve as the blueprint for our State/EPA enforcement relationship.
Each year, Regions and States should jointly review the agreements
to assure:

• That the agreements reflect any changes in State and Federal
  enforcement priorities.  Guidance documents which highlight
  enforcement priorities are identified in Attachment 2.  The
  new Regional enforcement strategies process that resulted from
  the EPA Enforcement Management Council discussions, may be used
  as one means of better responding to differences among national,
  regional, and state enforcement priorities.

• That the "no surprises" policy applies to all aspects of the
  compliance and enforcement program.  States and Regions should
  evaluate their success in involving Attorneys General, determine
  if Attorney General involvement should be increased, especially
  for Superfund and Federal facilities enforcement actions, and
  determine if other parties1 need to be routinely notified or
  consulted in the enforcement process.  Regions and States
  should discuss the need to further share enforcement and
  compliance information including inspection results, monitoring
  reports, and evidence, and how this could best be accomplished.

• That effective dispute resolution processes are in place
  to surface issues quickly to managers in both Regions'  and
  States and provide for prompt resolution.


2.  Improved Management and Tracking of Enforcement Responses

a.  For Enforcement Responses that are Timely and Appropriate;

     The FY 1987 report on the implementation of  the timely  and
appropriate enforcement response criteria indicated  that some
improvements have been made by some programs but  that  still  more
needed to be done to fully implement the guidance.   In FY 1988,
the Steering Committee on the State/Federal  Enforcement Relationship
\/ The Steering Committee on  the  State/Federal  Enforcement
   Relationship is exploring  the  need  to  improve communications
   and relations with State environmental boards or commissions.

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                                -2-


 will be diicuasing  how to  improve the use of the timely and
 appropriate response  criteria  as an enforcement tool.

 • Regions and States  should, consistent with program guidances,
   improve their  management and tracking of significant non-
   compliers/violators.

 • The py 1988 enforcement agreements stressed improving use of
   state penalty  authorities or other sanctions.  For FY 1989,
   States should  commit  to developing and implementing a strategy
   for obtaining  a penalty or other sanction designed to determine
   future violations consistent with program guidance defining
   •appropriate"  enforcement response.  Regions should continue
   to encourage States  to develop civil administrative penalty
   authorities or to use'other  appropriate sanctions available
   under  state law or  regulation.

      The Deputy  Administrator  and each program office will
 review Regional  data  for timely and appropriate response as
 part  of  scheduled Regional visits and reviews.  The FY 1987
 timely and  appropriate  report  includes a section on EPA and  '
 state  performance, by Region,  specifically for this purpose.

 b.   For  Tracking and  Follow-through on Cases;

      The  current tracking and  reporting systems call for periodic
 reporting by  EPA and  States on cases filed or referred.  We  are,
 however,  facing  problems by not knowing the status of state  cases
 once  they have been filed or referred, not knowing whether or
 when  they have been settled, or not knowing whether or when
 final  compliance has been achieved.

 • Regions and  states should agree on how existing reporting
  relationships  can provide the status of filed or referred  cases
  up to  the time of settlement or closure and when compliance  has
  been achieved.

 3.   inspector  Training  and Development

      In  PY  1988, EPA will issue a policy statement and EPA
Order  on  inspector training and development.  Although EPA's
Order  for ia*pector training and development does not establish
training  requirements for state and loc  '• inspectors. States
are encouraged to adopt their  own formal inspector training
programs.

 • Regions and  States  should annually tssess a State's inspector
  training  needs and  inspection priorities as part of the
  enforcement  agreements process.

 • Regions should encourage state  inspector  training  programs
  through information  sharing  and through  state participation

-------
                               -3-


 in the design of EPA's training curricula, routine communication
 on course offerings, and training state instructors in the use
 of EPA'S training materials.

 4.  Up Front Agreement on Penalty Sharing

     In general, EPA's policy provides for state and local
 participation in certain aspects of federal environmental enforce-
 ment actions.  State and local entities may share in civil
 penalties that result from their participation, to the extent
 permitted by law and the circumstances of the individual case.
 Appendix c of the Policy Framework is an October 30, 1985
 memorandum containing EPA's policy on the division of penalties
 with state and local governments.  Unnecessary disputes regarding
 penalty sharing have arisen when discussions on the appropriate
 division of penalties occur late in the enforcement process*

 • Regions and States should consider developing a process
  for establishing penalty sharing ground rules in advance of
  enforcement settlement negotiations.

 5.  Working With states To Improve Federal Facilities Compliance

     Once the Federal Facilities Compliance Strategy is complete,
 Regions should reassess the following areas and incorporate
 into the agreements, as appropriate, understandings reached
with States on:

 • The enforcement approach a State generally plans to use for
  responding to Federal facility violations and plans for
  escalating the response, if necessary;

 • Types of situations where a State would request  EPA support
  or direct action;

 • Advance notification to States when EPA conducts inspections
  at Federal facilities, and protocols for State enforcement
  response following EPA inspections in delegated  States;

' Plans for joint EPA/State annual review of compliance
  problems at Federal facilities in a state.

-------
EXIST.* OR fUMa..Vm«L GUIDANCE APMTIN,,
                                                EPA
                                                                            AGFEmons
                                        Inter-Program National Guidance;


  Revised Policy  Framework for State/Federal Enforcement Agreements, August 26, 1986

  Annual Guidance for  the Tt 1989 Enforcement Agreements Process.

                                                       Compliance Inspectors and Field Investigators,
  Federal Facility Compliance Strategy, to be issued June 1989.
    Hater-NPDES
              Drinking Mater
                    Media Program Guidance;

                              Air
                                           T
                                                                        RCRA
   FIFRA/tSCA
           Guidance
  fpr Oversight of
  tn*D£S Programs
  FY 1987, 4/1/87
 'stances of Mon-
  Compliance Report-
  ed in QNCR, 8/26/8S
  QNCR Guidance, 3/86
  Inspection Strategy
  and Guidance, 4/85
 FY 85 Initiatives
 on Compliance Moni-
 toring and Enforce-
 ment Oversight,
 6/29/84.
  ' i. '   '        i   :
 Final Guidance? ion
 PWS Grant Program
. Imnlementat ion,  n
 3/^0/84.

 Regulations:
 NIPDMR, 40 CFR
 Parts 141, 142.  '

 Guidance for PMSS
 Program Reporting
 Requirements,
 7/9/84.
                                  Timely  and  Appro-
                                  priate  Enforce-
                                  ment  Response
                                  Guidance, 6/28/84.
                                  rev.  4/11/86

                                 • Compliance  Data
                                  System  Guidelines
                                  for FY  1986, 2/86.
                                • Guidance on
                                  Federa11y-Report-
                                  able violations,
                                  4/11/86.

                                • Compliance Moni-
                                  toring Strategy,
                                  3/31/88.
                                                                • Interim National
                                                                  Criteria for a
                                                                  Quality Hazardous
                                                                  Haste Management
                                                                  Program Under RCRA,
                                                                  6/86 w f! 5 * -.• ?   •    ; ; i
                                                                   ,».«)f I'.1*-; •-  '•'•*' -•  1-^
                                                                • RCRA Penalty ;ii,.«;«-,-
                                                                  Policy, 5/8/84.

                                                                • FY 1988 RCRA imple-
                                                                  mentation Plan,
                                                                  3/31/87, to be re-
                                                                  issued  for  FY 89
                                                                  by 4/1/88.

                                                                • RCRA Enforcement
                                                                  Response Policy,
                                                                  issued  12/21/84,
                                                                  revised 12/21/87.

 Final  FY 88 En-
 forcement and
 Certification
 Grant Guidance,
 3/10/87.

 Interpretative
 Rule: FIFRA State
 Primacy Enforce-
 ment Responsibi-
 lities, 40 CFR
 Part 173, 1/15/83
Final TSCA Grant
Guidance for the
Cooperative Agree-
ment States,
3/10/87.
• Plan
1dance is underlined.

-------
                 	Drinking Water              Air
                      !            	!	
• Revised Enforcement • PY 85-86 Strategy    •  Asbestos strategy,
  Management System,
  3/86.
                                                                            RCRA
                                                                                              PIFRA/TSCA
                                                3/31/88.
 • NPDES Federal
   Penalty policy,
   2/11/86.
                         for  Eliminating
                         Persistent  Viola-
                         tions  at  Community  • Class B VOC Source
                         Water  systems,
                         3/J  /85.
                                               Compliance Strategy,
                                               3/87.
 " .Strategy, for I08U-  •..Guidance on, J?Y< 88
                        '
   Gu
            £or,Re-
  .attng ROW Won-
*  iTlridi 111   i  I il I I
£• 4>retreatment
L  implementation
   Requirements,
   9/30/87.

 • .Implementation of
 ' 'the pretreatment
               En-
             Track-
   ing System,  .
 • 3724/87 (letter)
 v .
 • National'Municipal
  -Policy, published
   3/28/84, and
  guidance, 3/84.
 • NMP Enforcement
   Strategy,,9/22/87.
                        FY 87 SPMS t GWAS
                        Targets  for the
                        PWSS Program,  (sue
                        definitions),
                        7/10/86.

                        Guidance on FY 88
                        PWSS Enforcement
                        Agreements, 4/87.
                       • Guidance on Use of
                         AO Authority Under
                         SDWA Amendments,
                         V20/87.

                       • PY 88 UIC Reporting
                         Guidance, 4/87.
                       • UIC Program Guidance
                         153, 12/86.

                       •PWSS Compliance
                         Strategy, 4/1/87.
   Compliance and
   Enforcement Program
   Descriptions  in
   Final  Authorization
   Application and state
   Enforcement Strategies,
   6/12/84.

 •  Compliance Moni-     <
  , Jtor ing,; aijd Enforce-  &i'
*  ment Log - form for *
  recording monthly
   compliance date
   from States and
   Regions.
  Technical Enforce-
  ment Guidance on
  Ground-Water
  Monitoring, Interim
  Final, 8/85.

  Compliance Order
  Guidance for Ground
  Water Monitoring,
  8/85.

  Loss of Interim
  Status Guidance,
  8/85.

  RCRA State Over-
  sight Inspections,
  12/87.
                                                                                                  Ml  «

-------
         -INDUES	     Drinking Mater     	Air

• PretreatMent Own   • uic o*pl lance
  plianoe Hooitoring    Strategy,  3/31/87.
  and Enforcement
  Guidance, July 25,
  1986.

• Administrative
  Penalty Order Regu-
  lations, Policies,
  and Guidances,
  August 28, 1987

• PCS Policy State-
  vent, Oct. 31,
  1985.

• appliance Moni-
  toring and En-
  forcement Strategy
  for Tfcxics, to be
  issued April 1988.

-------
OR.1

-------
OR.1-1

-------
* "  i
       '    UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON. DC 20460
       OR, I-

1383
                                                   LEGAL. AND ENFORCEMENT C

  MEMORANDUM

  SUBJECT: Guidance for Drawing Judicial Consent Decrees
                                        /k  -fi  •
  FROM:    Courtney Price  \J&U~X-«—*v- /O- 0 ^-v-u-*.
           Special Counsel for Enforcement

  TO:      Assistant Administrators
           Associate Administrator for Policy
              and Resource Management
           Associate Administrator for Regional Operations
           General Counsel
           Associate Enforcement Counsels
           Regional Administrators, Regions I-X
           Regional Counsels, Regions I-X

       I am forwarding to you enforcement guidance entitled
  "Guidance for Drafting Judicial Consent Decrees" for use by
  you and .your staff.          .              •

       This guidance was circulated in draft form to the program
  AAs for review and concurrence.  I believe the guidance will be
  useful to those at EPA responsible for negotiating enforcement
  actions and drafting consent decrees.

       Obviously, the general guidance provided by this document
  cannot deal with any one program specifically.  Therefore, the
  program offices may wish to work with their respective Associate
  Enforcement Counsel to develop media-specific guidance to
  deal with unique issues or to provide more specific examples
  of certain consent decree provisions.

       This document should be added to your copy of the General
  Enforcement Policy Compendium wh'ich was distributed in March of
  1983.  A revised table of contents and index for the Compendium
  are also attached.

      If you have questions concerning this guidance, please contact
  Janet Clark of my staff at 426-7503.

  Attachments

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GUIDANCE FOR DRAFTING JUDICIAL CONSENT DECREES
    EPA GENERAL ENFORCEMENT POLICY I GM - 17
                      UNITED STATES ENVIRONMENTAL
                           PROTECTION AGENCY
                      EFFECTIVE DATE:

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THE POLICIES AND PROCEDURES ESTABLISHED IN THIS DOCUMENT ARE
INTENDED SOLELY FOR THE GUIDANCE OF GOVERNMENT PERSONNEL.
THEY ARE NOT INTENDED AND CANNOT BE RELIED UPON TO CREATE
ANY RIGHTS, SUBSTANTIVE OR PROCEDURAL, ENFORCEABLE BY ANY
PARTY IN LITIGATION WITH THE UNITED STATES.  THE AGENCY RESERVES
THE RIGHT TO ACT AT VARIANCE WITH THESE POLICIES AND PROCEDURES
AND TO CHANGE THEM AT ANY TIME WITHOUT PUBLIC NOTICE.

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                      TABLE OF CONTENTS


TOPIC                                                     PAGE

I.   Introduction  	  1

II.  Front End Standard Provisions - Providing the
     Factual and Legal Background for the Consent Decree ..  3
          t
     A.  Parties  	  3
           Plaintiffs - example  	  3
           Defendants - example  	  4
           Intervenors - example  	  5
                      '' t'
     B.  Procedural History  	  5
           Examples  	  5

III. Transitional Clause - Providing a Lead into the
     Court's Order  	  6
       Example  	  7

IV.  Provisions of the Court's Order	  7

     A.  Jurisdiction and Statement of the Claim	  7
           Jurisdiction - example  	  7
         • .Statement of the claim - example  	  7

     B.  Applicability Clause  	  8
           Example  	  8

     C.  Public Interest Provision  	  9
           Example	  9

     D.  Definitions Section  	  9
           Example  	  10

     E.  Compliance Provisions  	  10

         1.   Generally  	  10
               Example  	  12
               Example - Sinter Plant  	  13

         2.   Compliance Provisions for Repeat Violators  ..  14

         3.   Performance Bonds  	  15
               Example  	  IS

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     F.  Provisions Defining Other Responsibilities of
         the Parties to the Decree	  15

         1.  Notification  	  15
               Example  	  16

         2.  Penalties  	  16

             a.  Generally	  16
                   Examples  	  16, 17

             b.  Other Obligations Assumed by Defendants ..  18
                   Example	  19

         3.  Dispute Resolution Provisions  	  19

         4.  Nonwaiver Provision  	  20
               Example  	  21

         5.  Stipulated Penalties  	  22
               Example 	  23

         6.  Force Majeure  	  24
               Example	  26

         7 .  Public Comment, on the Decree  	'. . .  27
               Example	  27

         8.  Retention of Jurisdiction  	  27
               Example  	  28

         9.  Confidentiality of Documents  	  28
               Example 	  28

        10.  Modification of the Consent Decree  	  28
               Example  	  29

        11.  Termination of the Decree and Satisfaction  ..  29
               Examples  	  29, 30

        12.  Costs of the Action  	  30
               Example  	  30

        13.  Execution of the Decree  	' 31

APPENDIX A - Consent Decree Checklist

APPENDIX B - Sample Consent Decrees

                             (ii)

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I.    Introduction
     The purpose of this document is to provide guidance on
provisions which EPA should include when drafting a settlement
agreement covering a civil enforcement action for which the
Federal government has decided that judicial remedies are
appropriate.  The document explains the appropriate use of
various standard provisions and provides sample language for
these provisions.
     Each judicial consent decree negotiated by EPA differs,
because each deals with a different noncompliance problem and
embodies the results of a separate negotiating process.  Pro-
visions contained in decrees must differ to reflect the agree-
ment resulting from these-negotiations.  Most consent decrees,
however, also must contain certain relatively standard provi-
sions to address matters which are relevant in virtually all
enforcement actions.  Use of this standard language will
lessen the review necessary of the resulting draft consent
decree.  Of course, local court rules may also mandate specific
forms which must be followed or provisions which must be
included in settlement agreements.
     The settlement of a potential civil judicial action
should almost always result in a negotiated consent decree.
Occasionally, in the past, EPA has entered into voluntary
agreements to settle some enforcement actions.  Those EPA
officials negotiating settlements in EPA enforcement actions
are not encouraged to use such voluntary agreements and they
should be limited to unique situations, for example,

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                              -2-
 in  cases  in which no prospective  action  is  required  from the
 defendant.
     A consent decree may operate as a release  from  liability
 for the defendant for the violations addressed  by the decree.
 For this  reason, the decree must  be narrowly drawn and address
 only the  allegations made in  the  complaint.  The consent decree
 should release the defendant  from liability only after the
 defendant has complied with all the terms of the decree.  In
 all cases, settlements must be carefully drafted.  Many
 parties may be involved as defendants or potential defendants,
 particularly in hazardous waste cases; therefore, you should
 be certain that non-settling  defendants or potential defendants
 are not released from liability because EPA _has settled with
 one or some of the defendants. (See, Nonwaiver  Provision,
page 20).
    This guidance is meant to apply generally to all EPA media
 areas and does not attempt to discuss unique issues  limited
 to a specific media.  Therefore, EPA attorneys  drafting
 consent decrees should consult any applicable media-specific
 policies for guidance in dealing with these issues.  You
 should follow separately issued guidance for procedures to
 use in conducting negotiations and for the review and approval
 of proposed consent decrees.

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                             -3-

II.  "Front End" Standard Provisions - Providing the Factual
     and Legal Background for the Consent Decree.

     A.  Parties and Cause of Action

         It is obvious that each consent decree must identify

the parties and the cause of action.  The plaintiff in every

action is the United States of America, on behalf of the

United States Environmental Protection Agency.  Identify the

cause of action by specifying the legal authorities allegedly

violated by the defendant and by briefly describing those

actions by the defendant which led to the filing of the complaint.

The decree should make some reference to the complaint which

has been or will be filed to demonstrate the decree's relation-

ship to pending litigation.

                           EXAMPLES
            •
         1.  Plaintiff, United States of America, on behalf
             of the United States Environmental Protection
             Agency (EPA), has filed the complaint herein on
             (date)     This complaint alleges that the
             defendant violated the Clean .Air Act, 42 U.S.C.
             § 7401 e_t seq. and the 	 State Implemen-
             tation Plan  (the SIP) adopted under the Clean
             Air Act by the following actions:

         2.  Plaintiff, United States of America, on behalf
             of the United States Environmental Protection
             Agency (EPA), filed the complaint herein on
              (date) .  This complaint alleges that the
             defendant violated the Clean Water Act, 33
             U.S.C. §1251 et seq.  and National Pollutant
             Discharge Elimination System (NPDES) Permit No.	
             by the following actions:


     Every consent decree should identify the defendant in terms

of the defendant's status as an individual,  corporate entity,

partnership,  etc.   This section should give enough factual

information to establish the court's personal jurisdiction

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                             -4-

over the defendant and to establish venue.  In some situations,

the defendant will own or operate several facilities.  Facilities

covered by this decree should be specified with particularity.

If the decree fails to identify precisely those facilities

or sources which are in violation of the relevant statute(s)
                                   •
and for which relief is provided in the decree, there may be

some question as to the scope of the decree.

                           EXAMPLE

             Defendant, XY2 Steel Corporation (Defendant),
             is a Delaware corporation, registered to do
             business in the Commonwealth of Virginia
             with its prinicipal place of business at 6004
             Main Street, Alexandria,  Virginia.

             Defendant owns and operates an integrated steel-
             making facility known as the "Karefull Works",
             in Karefull Hills, Smith County, in the Southern
             District of Virginia.  Defendant owns and
             operates various facilities at the Karefull
             Works, Including among others, a sinter plant,
             comprised of two sintering lines; an open hearth
             furnace; three blast furnaces; an electric
             arc fan shop, comprised of two electric arc
             furnaces; and two coke oven batteries.  All
             of the above facilities are alleged by the
             Plaintiff to be sources of air pollution operating
             in violation of the State Implementation Plan
             and are covered by this decree.


     In addition to the plaintiff and defendant(s), any inter-

venors in the suit (often affected States) should be identified

as parties to the decree.  Making the intervenors parties to the

decree is necessary for full settlement and can give them the

ability to enforce the decree's provisions.  Binding intervenors

to the decree's provisions also provides the defendant with

complete information as to the extent of its liability.  If

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                             -5-

motions to intervene are pending, those, as well as any other

outstanding motions, should be resolved by the decree.

                           EXAMPLE

             The State of Ohio has moved to intervene as
             Plaintiff.  The Commonwealth of Pennsylvania
             has also moved to intervene as Plaintiff to
             protect its interest insofar as resolution of
             the allegations of the complaint affect water
             quality in the Mahoning River at the Ohio-
             Pennsylvania State line.  The motions to
             intervene are hereby granted.


     B.  Procedural History

         The decree should include provisions regarding proce-

dural history if the defendant in the case at bar has been

involved in prior relevant enforcement proceedings.  It is helpful*

in these cases, to specify the relationship between this decree
                               •

and previous decrees and orders in effect with regard to this

defendant.  The decree you are drafting may abrogate or add to

the provisions of a previous decree or order.  If so, you

should detail these facts in the decree.  In some instances,

the previous decree or order may have resolved violations at

the same facility which are so similar to those presently being

addressed that the existence of two decrees would be confusing.

A new decree which incorporates those provisions of the prior

decree still in effect may clarify the obligations of the

defendant.  Finally, if the violation of an administrative

order preceded this judicial action, you should note that

fact in this section of the decree.

                           EXAMPLES

         1.   Plaintiff and Defendant entered into a-

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                              -6-

             Consent Decree  to  resolve  a  prior  case,
             Civil Action No. 	,  and  the
             Defendant has fully  and  satisfactorily
             complied with that prior Decree.

          2.  Plaintiff and Defendant  entered  into a
             Consent Decree,  to resolve violations of  the
             Clean Air Act at defendant's 	
             facility.  That  Decree retains full force and
             effect.

          3.  Plaintiff issued an  administrative order
             pursuant to §309 of  the  Clean Water Act to
             the Defendant on (date).  The Defendant has
             failed to comply with the  terms  of this
             administrative order.
Ill. "Transitional" Clause - Providing a Lead  into the Court's
     Order

     Traditionally, every consent decree contains a transi-

tional clause which signals the end of the  introductory

portions of the decree and the beginning of the Court's

order.

     You will most likely draft and execute a  consent decree

which is the result of a settlement before  the introduction

of any evidence or the finding of any facts.   In these instances,

it is inappropriate to recite that these events took place.

     In some instances, settlement may be reached without the

defendant admitting any fa.cts or points of  law and refusing to

admit any liability.  It is appropriate to  use this clause to

indicate this fact.

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                             -7-

                           EXAMPLE

             There has not been a trial on any issue of fact
             or law in this case.  However, the parties wish
             to settle the dispute described above.  Accordingly,
             they have agreed to the following order through
             their attorneys and authorized officials.

             THEREFORE, it is ORDERED as follows:
     However, if the defendant has admitted certain facts,

these should be explicitly noted in the decree.


IV.  Provisions of the Court's Order

     A.  Jurisdiction and Statement of the Claim

         Every decree must contain a provision reciting that the

court has subject matter and personal jurisdiction.  The decree

should recite the statutory authority for the court's jurisdic-

tion.  This i's particularly important if the defendant disputed

the court's jurisdiction.  The following example states the fact

of the court's jurisdiction and provides a waiver by the defen-

dant of any objections to the court's jurisdiction.

                           EXAMPLE

             This Court has jurisdiction over the
             subject matter and over the parties
             pursuant to 28 U.S.C. §1345; 42 U.S.C. 57603
             and 42 U.S.C. 6973.  The Defendant
             waives any objections it may have to the
             jurisdiction of the Court.


     Additionally, Federal Rule of Civil Procedure 8(a) requires

that a complaint state a claim for which relief can be granted.

Obviously, courts cannot grant relief where no cause of action

will lie.  It is essential to state in the decree t.hat the com-

plaint met this requirement, e.g., "The Complaint filed herein

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                             -8-

states a claim for which relief can be granted".  Such a state-

ment does not constitute an admission of liability by the

defendant, but only that the allegations of the complaint, if

proved, would support the judgment.

     B.  Applicability Clause

         The applicability clause defines those to whom the

decree applies.  It binds the successors in interest to both
                     • -(x
the plaintiff and the defendant, thus providing for those

instances when ownership of facilities or sources may change

after entry of the decree.   The language used parallels the

language of Federal Rule of Civil Procedure 65(d) since that

rule sets out the scope of injunctions.

                           EXAMPLE
                                                      •
             The provisions of this consent decree shall
             apply to and be binding upon the parties to
             this action, their officers, agents, servants,
             employees  and successors.  Defendant shall
             give notice of this consent decree to any
             successors in interest prior to transfer
             of ownership and shall simultaneously verify
             to plaintiff that defendant has given such
             notice.


     In some cases, particularly hazardous waste site cases,

the decree may include  a further provision which will ensure

that subsequent purchasers of the property have notice

that the site was or is a hazardous waste site and that a

consent decree exists which affects the property.  For example,.

the decree could provide that it be recorded with the local

office having responsibility for the recording of deeds and

other such instruments.   Alternatively, the defendant could

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                             -9-
agree to note the decree on the deed to the property.
     C.  Public Interest Provision
         All consent decrees should contain a provision that the
parties agree and the Court has found that the decree is in the
public interest.  Such a statement by the parties and a finding
by the Court makes it more difficult for others to later attack
the decree's terns.  (This is especially true for those decrees
which are subject to public comment.  See the discussion at
page 27.)
                           EXAMPLE
             The parties agree and the Court finds that
             settlement of these matters without further
             litigation is in the public interest and
             that the entry of this decree is the most
             appropriate means of resolving these matter-s.

     D.  Definitions Section
         Consent decrees which contain many technical or poten-
tially ambiguous terms, or define terms according to agreement
reached between the parties should contain a separate section
listing those definitions.  This section can also give defini-
tions for potentially misleading terms.
     Of course, definitions given must conform with definitions
given in statutes and regulations.  Do not attempt to redefine
terms that have specific legal definitions; however, examples
or illustrations of these terms may be appropriate.
     For consent decree's that are very short and limited in
scope a separate section devoted to definitions may be unne-
cessary.  Terms defined in specific decrees will, of course,

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                              -10-

 vary.  The  following example  demonstrates one  form of such a

 section.

                           EXAMPLE

             The following terms used  in this  consent
             decree shall be  defined as follows:

             a.  The term "days" as used herein shall
                 mean calendar days.

             b.  The term "permanently cease operation",
                 when 'used in such phrases as  "per-
                 manently cease operation of the six (6)
                 open hearth  furnaces", .shall mean the
                 complete cessation of production at the
                 relevant source and the termination of
                 all power or fuel to  the source.


     E.  Compliance Provisions

         1.   Generally

     Consent decrees must require compliance with applicable

statutes or regulations and commit the defendant to a particular

remedial course of action by a date certain.  Consent decrees

negotiated by EPA contain compliance provisions whenever it

is necessary for defendant to take remedial action to cure

or prevent violations unless no injunctive relief is necessary

to obtain compliance with applicable law (i.e., penalties

only case).

     Compliance provisions set out what steps  the defen-

dant must take to remedy violations of various environmental

statutes and usually define methods EPA can use to determine

the defendant's success in meeting these provisions.  The

specific compliance provisions of each decree will vary

depending on the facts of the specific case and the media

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                             -11-

 involved.  Drafters  should  consult media-specific policies

 for guidance.

      Compliance provisions  should specify  the standard or level

 of performance which a  source  ultimately must demonstrate it

 has met.   Other than interim standards  to  be attained until

 final compliance  is  achieved,  a  decree  should not set a

 standard  less stringent than that required by applicable law  because
                     ''..'
•a decree  is  not a  substitute for regulatory or  statutory change.

      You  should avoid  including  compliance provisions which

 require the  defendant  to comply  solely  by  installing certain

 equipment, unless  specific  technical  standards  are  required by

 applicable regulations.   Such  provisions should require

 compliance with the  appropriate  standard as well.   Such a

 provision may allow  the defendant to  argue that installation

 of the equipment  fulfills the  requirements of the consent

 decree even  if the equipment fails  to achieve compliance

 with  statutes and  regulations.   You may include provisions

 which require the  installation of necessary control technology.

 However,  the provisions must be  clear that installation of

 specific  equipment does riot relieve the defendant from the

 responsibility for achieving and maintaining compliance with

 the applicable laws  and regulations.^/
_!/ Under  some  statutes,  CERCLA,  for  example,  standards  for
clean-up  are rarely  available.   When the  decree  involves
future clean-up  activities  rather  than  cash  settlements,  the
decree may usefully  specify continuing  State/EPA responsibilities
for determining  future  clean-up  activity.

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                             -12-

     An  important part of  the  compliance  section  of  a decree

 is  the inclusion of provisions which provide a means of

 monitoring the defendant's performance.   Depending upon the

 performance standard required  by the decree, monitoring
         i
 provisions might, for example, require periodic tests or reports

 by  the defendant.  Test protocols may be  set out  in technical

 appendices to the decree.  Generally, in  choosing monitoring

 provisions you should consider such factors as the impact

 on Agency resources of different monitoring requirements

 and the ease with which the Agency can proceed with monitoring,

 as well as the need for some type of Federal oversight to

 ensure that the defendant  is addressing noncompliance problems

 adequately.  For example, you  will want to provide for site

 entry and access and document  review by the Agency in the

 decree.  You should not waive  the Agency's right  to assert

or utilize its statutory authorities, such as right of entry

or document production.

                           EXAMPLE

             Any authorized representative or contractor
             of U.S. EPA or Intervenors,  upon presentation
             of his credentials, may enter upon the premises
             of the Karefull Works a't any time for
             the purpose of monitoring compliance with
             the provisions of the Consent Decree.

     The decree should specify timetables or schedules for

 achieving compliance requiring the greatest degree of remedial  .

 action as quickly as possible.  Such timetables are particularly

 relevant in decrees which mandate construction the defendant

must undertake or cleanup  the  defendant must accomplish.

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                             -13-

These schedules should include interim dates so that the •

Agency can monitor the defendant's progress toward compliance.

                           EXAMPLE

   III. Sinter Plant

     A.  Applicable Emissions Limitations

         1.  Emissions from the sinter plant at Defendant's
             Karefull Works shall comply with the emission
             limitations in 25 Pa. Code §§123.41, 12*3.3 and
             123.1 as follows:

             a.  Visible emissions from any sinter plant
                 stack shall not equal or exceed 20% opacity
                 for a period or periods aggregating more
                 than three (3) minutes in any sixty (60)
                 minute period and shall not equal or exceed
                 60% at any time, as set forth in 25 Pa. Code
                 §123.41.

             b.  Visible emissions from any part of sinter
                 plant operations shall not equal or exceed
                 20% opacity for a period of periods aggregat-
                 ing more than three (3) minutes in any sixty
                 (60) minute period and shall not equal or
                 exceed 60%, as set forth in 25 Pa. Code
                 §123.41.

             c.  Mass emissions from the sinter plant
                 windboxes and from all gas cleaning
                 devices installed to control emissions at
                 the sinter plant shall not exceed 	
                 grains  (filterable) per dry standard cubic
                 foot (the applicable emission limitation).

             d.  Fugitive emissions from any source of
                 such emissions at the sinter plant shall
                 not exceed the emissions limitation set
                 forth in 25 Pa. Code §123.1

         2.  The air pollution control equipment described
             below shall be installed in accordance with
             the following schedule:

             Submit permit application  November 1, 1980
             to DER and to EPA for
             approval

             Issue purchase orders      May 1, 1981

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                              -14-

             Commence  installation       November  1,  1981

             Complete  installation       September 1,  1982
             and start up

             Achieve and demonstrate     November  1,  1982
             compliance

     B.  Sinter Plant Compliance Program

         1.  In order to bring Defendant's sinter plant into
             compliance with  the requirements specified in
             paragraph III.A.I.e. above, Defendant shall
             install the following air pollution  control
             equipment''on sintering line fl.:

             a.  Defendant shall install an  air pollution
                 control device which complies with  the
                 emission limitation of  paragraph  III.A.I.e.
                 on fl sinter plant windbox  to control sinter
                 plant windbox stack emissions.

             b.  Defendant shall install a scrubber  or a
                 baghouse (or separate baghouse,  as  appro-
                 priate) on il sinter line and appropriate
                 ductwork to replace the existing  cyclone
                 for control of emissions from the discharge
                 end of #1 sinter line.

             c.  Installation of this equipment in no way
                 relieves the defendant  of the require-
                 ment of achieving and maintaining comp-
                 liance with the emission limitations set
                 out in paragraph III.A.I.


         2.  Compliance Provisions for Repeat Violators

     When negotiating with a source with a long history of

repeated violations negotiators should consider including

more stringent compliance monitoring provisions in resulting

consent decrees.  The decree could include provisions for

more frequent monitoring and testing by  the  source to ensure

continued future compliance or opportunities for more EPA

monitoring and testing in addition to self-monitoring by the

source.

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                             -15-

         2.  Performance Bonds

     EPA may require performance bonds from a defendant to ensure

that actions required by the decree (i.e., clean-up of a site,

installation of pollution control equipment) are actually com-

pleted.  The amount of any such bond will vary from case to

case.  The provision should state those circumstances under

which the bond becomes payable.  The bond itself is a separate

instrument which sets out more fully those circumstances

under which the bond is forfeited and those conditions under

which the bond is released, as well as any sureties guaranteeing

the bond.  Therefore, the bond instrument itself should be

closely reviewed for adequacy.

                           EXAMPLE

             The defendant shall comply with the'follwing
             provisions at Blast Furnaces 1, 2, 3 and 4.

             a.  Defendant shall install an emission
                 suppression system on furnaces 1 and 4.
             c.  Defendant has posted a bond payable to
                 United States Treasury in the amount of
                 $1,000,000 for each of blast furnaces
                 1 and 4 payable immediately and in full
                 if defendant fails to certify installation^
                 of an emission suppression system by December
                 31, 1982, and demonstration of compliance
                 with the above emission limitation by December
                 31, 1982.
     F.  Provisions Defining Other Responsiblities of the
         Parties to the Decree.

         1.   Notification Provision

             Various provisions in consent decrees may require

notification of different events to the plaintiff, defendant

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                             -16-

and/or the court.  When  this is  the  case,  it  is appropriate

to  include a provision setting out to whom such notices should

be  given.

                           EXAMPLE

             Whenever, under the terms of this decree,
             notice is required  to be given by one party to
             another party and/or the court,  such notice
             shall be directed to the individuals specified
             below at the addresses  given, unless those
             individuals or their successors  give notice in
             writing to  the other parties that another
             individual  has been designated to receive
             such communications.

               (appropriate names and addresses)


         2.  Penalties

             a. Generally

     Often, the defendant will be liable for  a civil penalty for
                      •                              •
its violation of the statute.  Some  decrees may contain only

penalty provisions in situations in  which some sanctions are

appropriate to respond to past violations and to deter future

misconduct, yet compliance provisions are unnecessary because

the defendant has achieved compliance before  the execution

of  the decree.  The decree should state that  the payment is

a penalty so the defendant does  not  obtain a  tax advantage

from its payment.

                           EXAMPLE


             Defendant shall pay a civil penalty in the
             amount of 	 as  a result  of the defen-
             dant's violation of 	 with regard to
             facilities  which are the subject of this decree.

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                             -17-

     The decree should also state terms for payment of any penalty.

Normally/ payment should be in a lump sum within a short time

from the entry of the decree.  Installment payments may be allowed

in the following circumstances:

   - if the defendant can demonstrate an inability both to pay the

     lump sum penalty and to finance remedial action or continue

     in operations; and,        '

   - if there is no reason to believe that further payments will

     not be forthcoming.

If the defendant agrees to pay by installments, the decree

can provide for interest at the appropriate judgment interest

rate.

     Payment provisions should recite the amount of the payment,

to whom paid, 'how payment is made and when payment is due-.  Normally,

the provisions should require defendants to submit a cashier's

check payable to "Treasurer, United States of America" to the

appropriate Regional Counsel.

                           EXAMPLE

             Defendants agree to pay a civil penalty in the
             total sum of ONE MILLION, THREE HUNDRED AND FIFTY
             THOUSAND DOLLARS ($1,350,000).  The terms of
             this paragraph do not limit remedies available
             for violation of this decree.  Payment of ONE
             MILLION DOLLARS ($1,000,000) of such penalty
             shall be made within five days of the entry of
             this decree, by cashiers check payable to
             "Treasurer, United States of America", delivered
             to the Regional Counsel, USEPA, Region V, 230
             South Dearborn Street, Chicago, Illinois 60640.

             The remaining THREE HUNDRED AND FIFTY THOUSAND
             DOLLARS (5350,000) of such penalty shall be paid
             in the same manner, either by December 31, 1982,

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                              -18-

              in which event  there will  be  no  interest  charge,
              or by June 30,  1984, in which  event  interest
              shall be charged at the rate provided  in  28 U.S.C.A.
              §1961, for the  time period between the date of entry
              of this decree  and the date of payment.

                 b. Other Obligations Assumed by  Defendants

     During negotiations, defendants may offer to take certain

action in order to offset or in lieu of a cash penalty.  For

example, the  defendant may offer to install extra pollution

control equipment which'' is not necessary to meet  legal requirements.

     If EPA has agreed to accept lesser amounts in settlement

because of extra pollution control activity by the defendant,

drafters of consent decrees  must be sure that this agreement

is explicitly noted in the decree, and that the decree requires

the defendant to operate and maintain any "extra" equipment.

Consent decrees have precedential value, a,nd any  such'  trade-off

between the Federal government and defendants must be  readily

apparent to readers of the decree.  This provision will also

ensure that the defendant is  bound by its agreement to undertake

these actions.  You should refer to applicable civil penalty

policies for guidance, in evaluating credit-worthy activities and

their appropriate use.

     An effective means of ensuring the defendant's performance

of these actions is to include a provision  which  defers

collection of some or all of  a penalty amount until performance

is completed, so long as the  amount ultimately paid is acceptable

under any applicable penalty  policy.  The provision could

then excuse payment of the deferred portion of the penalty

entirely when performance has  been satisfactorily completed.

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                             -19-

                           EXAMPLE

             The payment of the penalty amount due on (date)
             shall be excused by the plaintiff if the plaintiff
             finds that the following conditions have been
             met.

             a) By (date)  , defendant shall install and operate
             a coke-side shed (as described in paragraph I.B.l.b.)
             on each battery to control pushing emissions^
             Each shed shall be evacuated continuously to
             capture and clean emissions from both the pushing
             operation and all door leaks.

             b) Defendant  shall achieve, maintain and demonstrate
             compliance with the emission limitation set forth
             in paragraph  I.A.l.d. with respect to mass emissions
             attributable  to coke oven pushing operations by
             (date) .  Defendant shall achieve and demonstrate
             compliance with the emissions limitation set forth
             in 25 Pa. Code §123.44(a) (3) with respect to
             door emissions under the shed by (date).

             c) Defendant  shall certify completion of the conditions
             listed in subparagraphs (a) and (b) above to the
            . plaintiff by  certified letter.  This notification
             should be sent by U.S. Mail, return receipt
             requested to  (name, title and address)  by (date)


         3.  Dispute Resolution Provision

     Disputes may arise between EPA and the defendant after

execution of the decree as to the defendant's compliance with

the terms of the decree.  The decree can provide its own mechanism

for resolving some or all of these potential disputes by the

parties before resorting to the court for resolution of the dispute.

Dispute resolution by the parties should be limited to a specific

amount of time.  Such a dispute resolution provision will

allow EPA to avoid resolution of each dispute by the court.

Advantages of such a provision include:

     a) speedier resolution of disputes because resort to

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                             -20-

        the court may not be necessary; and

     b) technical disputes can be resolved by those with the

        requisite expertise, thus avoiding the need to

        educate the court before evidence can be evaluated.

     A number of dispute resolution devices can be used in

decrees.  For example:

     a) EPA and the defendant could agree to negotiate for a
                    -" '-i'
        a limited period of time any such dispute or specified

        disputes which arise.

     b) The parties could agree to submit the matter to

        arbitration.  Again, a limited time period should be

        specified during which the parties could submit the

        matter to arbitration.  A specific time limit would be

        appropriate for the arbitration process as well. •

     c) Failing resolution by the parties, the decree should

        provide for application to the court to resolve disputes.

        If the matter is submitted to the court for resolution,

        the decree should provide that the defendant bears the

        burden of proof.

         4. Nonwaiver Provision

     At times a set of actions by a defendant may violate

separate statutory requirements.  One violation may be settled

while other claims are litigated.  In all decrees, it is

proper to state that the decree does not affect the defendant's

liability with regard to other statutes or regulations.  The

following sample is acceptable.

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                             -21-
                           EXAMPLE
             This consent decree in no way affects or
             relieves defendant of responsibility to
             comply with any other State, Federal or
             local law or regulation.
     If a consent decree settles a portion of a dispute under a
statute, the consent decree should clearly indicate that other
aspects of the case have not been settled.  For example, in
some hazardous waste cases an agreement may be reached
dealing with surface clean-up of a site but issues on ground
water contamination may be reserved for later resolution.  These
partial consent decrees should clearly state that the defendant
is not fully released from liability.
     Various statutes grant EPA specific powers to deal with
emergency situations.  The decree may specify that the Agency
retains the power to act in these situations.
                           EXAMPLE
             This decree in no way affects the ability of
             EPA to bring an action pursuant to Section
             303 of the Act, 42 U.S.C. $7603.
     Additionally, you may want to include a provision to
preserve the government's cause of action against third parties
who are not parties to the suit and who may be responsible along
with the named defendant(s).

                           EXAMPLE
             This decree does not limit or affect the
             rights of the defendants or of the United
             States as against any third parties.

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                              -22-



          5.  Stipulated  Penalties



     Most decrees should  contain provisions  for  stipulated



penalties.   These provisions  encourage  compliance and simplify



enforcement  by providing  a significant, clearly  defined sanction



in  the event the defendant violates a provision  of the decree.



Stipulated penalties are  appropriate for violation of the



following types of provisions:



             a)  final  and interim compliance requirements,



             b)  reporting, testing or monitoring requirements,



             c)  any other performance requirements  (including



                 requirements to pay. civil penalties).



     Provisions for stipulated penalties should  include the amount



of the penalty, how the penalty should be paid,  and  to whom the



penalty should be paid.  To set the amount of a  proposed stipulated



penalty,  you should be  guided by applicable  statutes, regulations



and EPA policies.  Normally, defendants should pay stipulated



penalties by delivering a cashiers check made payable to "Treasurer



United States of America" to the appropriate Regional Counsel.



     The decree may also provide that the court  issuing the



decree will  resolve disputes between the parties as  to liability



for and the  amount of an assessed stipulated penalty.  The provision



should also make clear  that stipulated penalties are not the



plaintiff's  exclusive remedy for the defendant's violation of



the decree and that the plaintiff reserves its right to seek



injunctive relief.

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                             -23-

                           EXAMPLE

             Failure by the defendant to achieve full compliance
             as required by Paragraphs IV.A.I through 9,  except
             as excused pursuant to Paragraph V herein (force
             roajeure), shall require defendant to pay a stipulated
             penalty of $7,500 per day for each day that such
             failure continues.

             Stipulated penalties are payable upon demand as follows:

             Cashiers check payable to:    Treasurer, United States
                                           of America

             Address for payment:          USEPA, Region III
                                           Curtis Building, Second Floor
                                           6th and Walnut Streets
                                           Philadelphia,  PA. 19106
                                           Attn: Regional Counsel

             Any dispute with respect to defendant's liability
             for a stipulated penalty shall be resolved by this
             court.  The provisions of this paragraph shall not be
             construed to limit any other remedies, including
             but not limited to institution of proceedings for
             civil or criminal contempt, available to plaintiff or
             intervenors for violations of this consent decree or
             any other provision of law.

     You may want to provide for stipulated penalties which esca-

late based on the number of days the source is not in compliance

or on the amount of excess emissions or effluents discharged

by the source in violation of the decree.  For example, for days 1

through 30 of violation the stipulated penalty could be $1000

per day.  This could increase to $2000 per day for days 30 through

60 and so on.  Similarly, excess discharges or emissions could

be expressed as a percentage over the daily limitation and a scale

could be devised for these as well.  For example, discharges which

are less than 10% over the daily discharge limitation would be

subject to a stipulated penalty of $500, from 10% to 25%, $1000

and so forth.

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                              -24-
      Another  approach which may  aid  the  negotiation process  is
 to  use  a  stipulated penalties provision  which  allows  the payment
 of  penalties  for  interim  violations  into some  kind of escrow
 account.  The clause could provide for the return of  these payments
 to  the  defendant  if timely final compliance  is achieved and  the
 terms of  the  consent decree are  satisfied.   If such an escrow
 account arrangement is used,  EPA staff should  review  the escrow
 agreement itself.  The agreement should  clearly give  the escrow
 agent the authority to turn the  fund over to EPA in the event
 of  noncompliance.
     6.  Force Majeure
     The purpose of a force majeure clause is  to excuse the
 defendant's performance pursuant.to the  decree because of cir-
 cumstances beyond the defendant's control (e.g., acts of God).
 Therefore, such a clause should not be included in a  decree
 unless the defendant insists  on  its inclusion.
     Although a force majeure  clause is  something the defer^vt
may want in the decree, it normally will be to EPA's  negotiating
 advantage if Agency representatives draft the  clause.  Generally,
 the following elements should  be included in drafting such a
 clause.
     a)  The clause must clearly limit excused delays in per-
 formance to those events which are beyond the  control of the
 defendant.  The decree may define specifically which  circum-
 stances would trigger the force majeure  clause.  Arriving at
 a list of such circumstances,  however, may consume a  good deal

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                             -25-
of negotiating time.  For this reason, the term "circumstances
beyond the control of the defendant" is acceptable.  The language
in the example (circumstances entirely beyond the control of the
defendant) is better.
     The clause should not allow the defendant to claim economic
hardship or increased costs as circumstances beyond defendant's
control which trigger the force majeure clause.
     b)  The clause should clearly place the burden on the
defendant to prove that the events causing the delay are based
on circumstances beyond its control.  The burden should be one
satisfied by clear and convincing evidence, if possible.
     c)  The clause should include a provision requiring
notification within a time certain by the defendant to the
plaintiff and the court of any delay or anticipated delay
the defendant claims triggers the force majeure clause.  This
notification should include the cause of the delay and the ex-
pected duration of the delay.  Failure to give notice of a
particular problem should preclude the defendant from invoking
the force majeure provision based on that problem.
     d)  The clause should provide that the defendant take
measures to prevent or minimize the delay to the maximum extent
reasonable and to propose a time when the preventive measures
will be fully implemented.
     e)  The clause should state that events triggering the force
majeure clause do not automatically excuse the defendant from
complying with the terms of the decree.  Ultimate compliance
should occur as quickly as possible, consistent with the decree's

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                             -26-

terms and any extensions granted because of the force majeure

clause.

     f)  Finally, the clause should provide some mechanism

for dispute resolution, since there may be instances in which EPA

and the defendant cannot agree that a specific delay is caused by

circumstances beyond the defendant's control.   (See the discussion

of dispute resolution provisions on page 19.)   It is acceptable
                    ' ' - >'
to allow the defendant to submit such disputes to the court for

resolution if agreement cannot be reached between the parties.

                           EXAMPLE

     a)   If any event occurs which causes or may cause delays
         in the achievement of compliance at Defendant's faci-
         lities as provided in this decree, Defendant shall
         notify the Court,  the Plaintiff and Intervenors, in
         writing within 20  days of the delay or anticipated •
         delay, as applicable.  The notice shall describe in
         detail the anticipated length of the  delay, the precise
         cause or causes of the delay, the measures taken and to
         be taken by Defendant to prevent or minimize the delay,
         and the timetable  by which those measures will be
         implemented.   The  Defendant shall adopt all reasonable
         measures to avoid  or minimize any such delay.  Failure
         by Defendant to comply with the notice requirements
         of this paragraph  shall render this paragraph void and of
         no effect as to the particular incident involved and
         constitute a waiver of the defendant's right to request
         an extension of its obligation under this Decree
         based on this  incident.

     b)   If the parties agree that the delay or anticipated delay
         in compliance  with this decree has been or will be caused
         by circumstances entirely beyond the  control of Defendant,
         the time for performance hereunder may be extended for a
         period no longer than the delay resulting from such
         circumstances.  In such event, the parties shall stipulate
         to such extension  of time and so inform the Court.  In the
         event the parties  cannot agree, any party may submit
         the matter to this Court for resolution.

     c)   The burden of  proving that any delay is caused by
         circumstances  entirely beyond the control of the
         Defendant shall rest with the Defendant.  Increased

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                             -27-

        . costs or expenses associated with the implementation
         of actions called for by this Decree shall not, in any
         event, be a basis for changes in this decree or extensions
         of time under paragraph b.  Delay in achievement of one
         interim step shall not necessarily justify or excuse delay
         in achievement of subsequent steps.

     7.  Public Comment on the Decree

     A Department of Justice regulation calls for a thirty day

public comment period on consent decrees which enjoin the dis-

charge of pollutants. ''(See, 28 CFR §50.7)  A provision should

be included in these decrees which acknowledges this reguire-

ment.

                           EXAMPLE

             The parties agree and acknowledge that final
             approval and entry of this proposed decree
             is subject '.to the requirements of 28 CFR
             S50.7.  That regulation provides that notice
             of .the proposed consent decree be given to
             the public and that the public shall have
             at least thirty days to make any comments.


     In the usual case,  the proposed consent decree is executed

by the parties and forwarded to the court with a cover letter

advising the court that the decree should not be signed by the

Judge or entered until the thirty day comment period has passed.

When the comment period has passed, the court is advised either

that no adverse comments were received or is advised of comments

received and the EPA/DOJ responses to the comments.  The court is

then requested to sign and enter the decree.

     8.  Retention of Jurisdiction

     The decree should include a provision which recites that the

court will retain jurisdiction of the case in order to enforce

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                             -28-

the decree and resolve disputes under the decree not specifically

provided for elsewhere.

                           EXAMPLE

             The Court shall retain jurisdiction to modify and
             enforce the terms and conditions of this decree
             and to resolve disputes arising hereunder as
             may be necessary or appropriate for the construction
             or execution of this decree.


     9.  Confidentiality of Documents

     In some actions, defendant will claim that documents

provided by it are confidential in nature.  In these cases,

the decree should provide that EPA-regulations will control with

regard to such documents.

                           EXAMPLE

             All information and documents submitted by
             defendants to EPA/State pursuant to this
             decree shall.be subject to public inspection
             unless identified and deemed confidential by
             defendants in conformance with 40 CFR Part 2.
             The information and documents so identified
             as confidential will be disclosed only in
            .accordance with EPA and State regulations.

     10.  Modification of the Consent Decree

     Consent decrees entered by the court are court orders and

as such may not be modified without the court's approval.

Currently, consent decrees are executed on EPA's behalf by

the Special Counsel for Enforcement or her delegatee.  There

fore,  modifications of decrees should be similarly executed.

A provision in the decree reciting these principles will

help to make clear to defendants what they must do in

order to modify the decree.

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                             -29-

                           EXAMPLE

             Any modification of this consent decree must be
             in writing and approved by the Court.  Any such
             written modification must be executed on EPA's
             behalf by the Special Counsel for Enforcement
             or her delegatee or successor.

     11.  Termination of the Decree and Satisfaction

     Since the defendant has agreed to settle the case and avoid

trial, it is appropriate that EPA agree to a termination of the

consent decree after the defendant has complied with all consent

decree provisions.  This provision is most appropriately placed at

the conclusion of the decree or in the introductory  'front end1

provisions of the decree.

     This termination may be automatic upon completion of the terms

of the decree.  However, a provision calling for  a motion for

termination by the plaintiff is preferred.  This  required action

by EPA would aid in eliminating disputes as to whether compliance

was achieved or not and as to when the consent decree terminated.

The decree may provide for 'a time lag between the time the defen-

dant comes into compliance with the decree and the termination of

the decree.   This time lag ensures that the defendant continues to

comply for a specified period of time.  When termination is delayed

in this manner, the time period specified  is at least 180 days in

most instances.

                           EXAMPLE

             The defendant must demonstrate to the plaintiff's
             satisfaction that the defendant has  complied with
             all of the terms of the decree.  One hundred and
             eighty days (180) after such  a showing by the
             defendant, the plaintiff agrees to move the court
             to terminate the decree.

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                             -30-

     Additionally, during negotiations  the defendant may insist

on a provision which recites that the decree constitutes a full

settlement of the action contained in the complaint and that this

settlement bars the plaintiff from any  other action against the

defendant based on those violations.  Such a clause should not

be included in a decree unless the defendant specifically insists

on its inclusion.  These clauses should be narrowly drawn so that

it is clear that only ••the specific action in the complaint is

covered.   Also,  cases with multiple defendants or potential defen-

dants require extra care so that these  other parties are not

released from liability when that is not intended.

                           EXAMPLE

             Plaint'iff and Intervening  Plaintiff will refrain from
             initiating any other civil enforcement action pursuar
             to Section 113(b)  of the  Act, 42 U.S.C. §7413, Secti
             304 of the Act, 42 U.S.C.  57604, Or applicable state
             law, with respect to the limitations contained in
             this Decree for the emission of particulate
             matter and visible emissions from the bark boiler
             while Defendant is in'compliance with this Decree.

     12.   Costs  of the Action

     A consent decree should contain a  provision which allocates

responsibility for payment of court costs incurred in the action

up to the date of settlement.  In most  negotiated settlements,

each party bears its own costs.

                           EXAMPLE

             Each party in this action  shall bear its
             own costs.

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                             -31-
     13.  Execution of the Decree
     The decree should include signature lines for those who
will execute the decree on behalf of the parties and for the
court.
     The authority to settle judicial actions is currently
delegated to the Associate Administrator for Legal and Enforce-
ment Counsel.  Therefore, consent decrees must be signed by
the AA for OLEC or his delegatee.  Additionally, in keeping with
EPA's Memorandum of Understanding with the Department of Justice,
settlements of cases in which DOJ represents the Agency require
the consultation and concurrence of the Attorney General.
Therefore, the decree should be signed by the Attorney General
or his delegatee.

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                          APPENDIX A
                   CONSENT DECREE CHECKLIST
   (This checklist can be used as a guide for inclusion of
                 consent decree provisions.)
NAME OF CASE:
U.S. v.
Civil Action
INCLUDED
PROVISION YES NO
Identification of Parties
and cause of action -
Plaintiff & initiation .
of the action
Defendant - where defen-
dant does business or is
incorporated, facilities
covered by decree
Intervenors
Procedural history - prior
consent decrees and status
prior administrative action
Transitional Clause
Jurisdiction
Statement of claim - com-
plaint states claim for
relief
Applicability clause -
to whom decree applies
Public Interest - decree
is in the public interest




















Definitions
No.
COMMENTS












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                             -2-
PROVISION
INCLUDED
 YES NO
COMMENTS
Compliance Provisions -
 Test method for demonstra-
 tion of compliance
 Monitoring provisions
 Entry and access
 Standards defendant must
 meet
 Schedules - final deadline
 and interim schedules
 construction schedules
 Operation & maintenance
 procedures
 Performance bonds
Notification provision

Civil penalties -
 Amount and form of payment
 (lump sum or installment)
 Penalty payment to State
 Credits

Dispute Resolution

Nonwaiver provision

Stipulated penalties -
 Items covered
 How payed
 Dispute resolution
 Escrow arrangements

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                             -3-
PROVISION
INCLUDED
 YES NO
COMMENTS
Force Majeure
 Events covered
 Burden of proof on
 defendant
 Defendant's duties
 (notification requirement)
 Dispute resolution
Public comment on decree
(28 CFR §50.7)
Retention of jurisdiction
 (by the Court)
Confidentiality of
 documents-
Modification of decree
Termination & satisfaction
Costs of the action
Execution of decree

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                     APPENDIX B


               SAMPLE CONSENT DECREES
(Attached are  consent decrees from the Air and Water
 Programs.   Although these  decrees do not contain all
 of  the  provisions  discussed in the guidance,  they
 can be  used as  examples of completed decrees.)

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                IN THE UNITED STATES DISTRICT COURT
               FOR THE WESTERN DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA,        )
                                 )
         Plaintiff,      •        )
                                 )
         and                     )   CIVIL ACTION NO.  G 81-289 CA 7
                                 )
STATE OF MICHIGAN, et al.,        )   JUDGE BENJAMIN F. GIBSON
                   "~            )
         Intervening Plaintiff,  )
                                 )
         v.                      )
                                 )
PACKAGING CORPORATION OF AMERICA )
         Defendant               )
                          CONSENT DECREE
         Plaintiff, United States of America, representing the
United States Environmental Protection Agency (hereinafter, the
"EPA"), having filed the Complaint herein o.n June 3,  1981;
                                •
         And the State of Michigan, representing the  Michigan
Department of Natural Resources (hereinafter, the "DNR") and the
Michigan Air Pollution Control Commission (hereinafter, the
"Commission" or "MAPCC"-), having moved to intervene as a party
plaintiff on June 4, 1981,  and this Court having granted said
Motion;
         And Plaintiff and Intervening Plaintiff having acted in
concert in this action against Defendant, Packaging Corporation
of America;
         And Plaintiff, Intervening Plaintiff and Defendant
having agreed that settlement of this matter Is in the public

-------
 interest  and  that  entry of this Decree without further litigation
      j
 is  the most appropriate means of resolving this natter;
          And  Plaintiff, Intervening Plaintiff and Defendant
 having moved  the Court to enter this Consent Decree;
          NOW, THEREFORE, before the taking of any testimony, upon
 the pleadings, without adjudication of any Issue of fact or law,
 without any admission or denial of the violations alleged in the
 Complaint and upon consent and agreement of the parties of this
Decree, it is hereby Ordered, Adjudged and Decreed as follows:

                           STIPULATIONS
          1.  This Court has Jurisdiction of the subject matter
herein and of the parties consenting for the purpose of entering
this Consent Decree.  The Complaint states a claim upon which
relief can be granted'against Defendant,, under Section 113 of the
Clean Air Act, as amended, (hereinafter, the "Act"), 42 U.S.C.
7*13.
         2.  The provisions of this Consent Decree shall apply to
and be binding upon all the parties to this action, their
officers, directors, agents, servants, employees, successors and
assigns,  and.all persons, firms and corporations having notice of
the Consent Decree and who are, or will be, acting in concert and
privity with the Defendant to this action or its officers, direc-
tors, agents, servants, employees and successors and assigns.  In
the event Defendant proposes to sell or transfer its real
property or operations subject to this Consent Decree, it shall
                               -2-

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adv'ise such purchaser or transferee of the existence of this
Decree/ and shall notify all parties to this Decree of such
proposed sale or transfer.
         3.  The parties agree and acknowledge that final ap-
proval and entry of this Decree is subject to the requirements of
28 C.F.R. §50.7, which provides that notice of proposed Consent
Decrees be given to the public and that the public shall have at
least 30 days in which to make any comments.
         4.  Defendant owns and operates a facility in Filer
City, Michigan  (hereinafter, the "Filer City facility") which
includes a Rlley bark-fired boiler (hereinafter, the "bark
boiler").  The  bark boiler is a source of air pollution emissions
subject to the provisions of Michigan Air Pollution Control
Commission Rules and the federally approved Michigan State
Implementation Plan (hereinafter, the' "Michigan SIP")'.
         5.  Former MAPCC Rule R 336.44 established an emission
limitation for partlculate matter of 0.65 pound of particulate
matter per 1000 pounds of exhaust gases, corrected to 50 percent
excess air, for the bark boiler.
         6.  Former MAPCC Rule R 336.41 established a smoke plume
      i
opacity limitation of 40 percent, generally, with certain exemp-
tions not material to this Decree.
         7.  On May 31, 1972, the Administrator of the EPA ap-
proved, as"part of the Michigan SIP, MAPCC Rules R 336.44 and R
336.41.
                               -3-

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          8.  On or about November 19, 1979, Defendant received
 from 'the  EPA a Notice of Violation citing, Inter alia, the bark
 boiler  for violations of R 336.44 and R 336.41 of the approved
 Michigan  SIP.  On December 19, 1979, a conference was held at EPA
 offices In Chicago, Illinois, with representatives of Defendant
 and the DNR, to discuss the cited violations.
          9.  MAPCC Rule R 336.1331 currently establishes an
 emission  limitation for partlculate matter of 0.50 pound of
                      • \tt
 partlculate matter per 1000 pounds of exhaust gases, corrected to
 50 percent excess air, for the bark boiler.
          10. MAPCC Rule R 336.1301 currently establishes a smoke
 pluoe opacity limitation of 20 percent, generally, with certain
 exemptions not material to this Decree.
          11. On May 6, I960, the Administrator of the EPA condi-
 tionally  approved MAPCC Rules R 336.1331 and R 336.1301, as part
of the Michigan SIP (45 Fed. Reg. 29791).
          12. On or about August 17, 1982,  Defendant received from
the EPA a Notice of Violation citing the bark boiler for viola-
tions of R 336.1301 of the Michigan SIP.
         13. Defendant owns and operates a boiler (hereinafter,
the "No. 5 boiler") at its Filer City facility, which boiler was
formerly a recovery boiler but is currently fired with natural
gas.  Defendant has applied to the Michigan DNR for an installa-
 tion permit to convert the No. 5 boiler to multi-fuel operation
 (including the combustion of coal, wood, bark, wood waste,
 sludge, and natural gas).  The Commission has recently approved
                               -4-

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the Issuance of such installation permit.   The converted  No.  5
boiler''Will have a baghouse collector as its air pollution con-
trol equipment (hereinafter the "No.  5 baghouse").

                              ORDER
         In consideration of the foregoing and the  representa-
tions made in open Court by the parties hereto, IT  IS HEREBY
ORDERED;

         Defendant shall achieve, demonstrate, and  maintain final
compliance with MAPCC Rules R 336.4H, R 336.HI, R 336.1331 and R
336.1301, and other emission limitations specified  In this
Consent Decree, In accordance with the following paragraphs:

                     .   COMPLIANCE PROGRAM
         1.  Defendant shall Install an add-on collector (side-
stream separator) to the existing pollution control equipment of
the bark boiler according to the following schedule:
             a.  commence engineering and
                 preparation of plans and
                 specifications                   Completed
             b.  submit copies of plans
                 and specifications to EPA
                 and DNR; submit applica-
                 tion to DNR for installation
                 permit                           Completed
             c.  issue purchase order for
                 collector                        1/31/83
             d.  begin on-site construction       8/31/83
                               -5-

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             e.  complete construction and
                 installation                     10/31/83

             f.  complete "shakedown" and
                 achieve compliance with a
                 partlculate emission limita-
                 tion of .-40 pound of particu-
                 late matter per 1000 Ibs of
                 exhaust gases, corrected to
                 50 percent excess air, and
                 MAPCC Rule R 336.1301            11/30/83

             g.  demonstrate compliance with
                 the emissions limitations set
                 forth in Subparagraph l(f) in
                 accordance with Appendix A       12/31/83
                     - \tf
         2.  If Defendant elects to proceed with the No. 5 boiler

conversion and construction of the No. 5 baghouse in lieu of the
                            v
compliance program set forth in Paragraph 1 it shall, on or

before March 15, 1983,  so notify the EPA and the DNR, in writing,

and certify that it has sent' out requests for bids for the com-

pletion of- the No.  5 boiler conversion and No. 5 baghouse and

that the necessary funds have been appropriated.  Upon such

notification and certification, Defendant shall proceed with the

compliance program set forth In Paragraph 3 and shall be there-

after excused from complying with subsequent requirements of

Paragraph 1; provided,  that if any stipulated penalties have

accrued, prior to the date of such notification and certlfica-
                     •

tion, for failure to comply with the requirements of Paragraph 1

such penalties shall then become due and payable upon demand.  If

the notification and certification described herein is not given

to the EPA and the DNR on or before March 15, 1983, Defendant  .

shall not be relieved from the obligation under Paragraph 1 to
                               -6-

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Install the sldestream collector in accordance  with  the  terms

thereof".

         3.  If Defendant elects to proceed with the No.  5  boiler

conversion and complies with the notice and certification re-

quirements of Paragraph 2 on or before March 15, 1983,  It shall

install the No. 5 baghouse and either (a)  route the  bark boiler

exhaust through the No. 5 baghouse, or (b) complete  the No. 5

boiler conversion such that no bark or wood wastes are  burned  in

the bark boiler, but will be burned instead in  the No.  5 boiler,

the emissions of which will be controlled  by the No. 5  baghouse,

in accordance with the following schedule:

             a
                                                  Completed

                                                  Completed

                                                  6/30/83

                                                  2/28/84
                 prepare specifications and
                 submit copies to EPA and DNR

             b.  obtain installation permit ,

             c.  award contract

             d.  begin on-site construction

             e.  complete construction and
                 Installation and achieve com-
                 pliance at the bark boiler
                 with a particulate emission
                 limitation of .05 pound of
                 particulate matter per 1000
                 Ibs of exhaust gases, cor-
                 rected to 50 percent excess
                 air, and KAPCC Rule RJ36.1301

             f.  demonstrate compliance with the
                 emissions limitations set forth
                 in Subparagraph 3(e) in accor-
                 dance with Appendix A            7/31/84

If Defendant elects to proceed with the compliance program set

forth in this paragraph It shall not operate the bark boiler
                                                  6/30/84
                               -7-

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af'ter-'June 30, 1984, unless the emissions thereof are controlled
by  the No. 5 baghouse.
         4.  If  the No. 5 boiler and bark boiler are both con-
trolled by the No. 5 baghouse, at no tine shall they be operated
simultaneously.
         5.  If  Defendant proceeds with construction and Instal-
lation of the sldestream collector In accordance with the terms
of  this Decree,  nothing herein shall preclude It from proceeding
with conversion  of the No. 5 boiler at a later date (after March
15, 1983); provided, that such later election to proceed with the
conversion shall not relieve Defendant from any obligation
arising under this Decree to complete the requirements of Para-
graph 1, hereof.

                       INTERIM REQUIREMENTS
         6.  Until final compliance is achieved pursuant to
Paragraph 1 or 3, whichever is applicable, Defendant shall
achieve and maintain compliance by the bark boiler with MAPCC
Rule R 336.1331  and limit the density of visible air contaminants
to a maximum of  Mb percent opacity, determined as a six-minute
average, except  that a maximum of one six-minute average of up to
51 percent opacity shall be permitted in any one hour.  Com-
pliance shall be determined in accordance with EPA Method 9,
Appendix A', HO CFR, Part 60.
                               -8-

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         7.  The operation and maintenance procedures  set  forth
      t
in Appendix B shall be implemented and followed until  such time
as bark boiler emissions are controlled by the No.  5 baghouse.
         8.  Upon request t>f the EPA or the DNR, and within
thirty (30) days of any such request, Defendant shall perform
stack testing at the bark boiler in accordance with Appendix A.
Defendant  shall notify the EPA and the DNR of the date of the
stack test in sufficient time to allow said agencies to observe
the testing.  Such tests shall not be requested more often than
every three months unless evidence is shown of noncompliance with
the interim limits specified above.

                CONTINUOUS MONITORING REQUIREMENTS
         9.  Defendant has installed and calibrated, and shall
maintain anc operate, a continuous 'opacity monitoring -system -in
the stack which serves the bark boiler, in accordance with the
procedures set forth in ^0 CFR Part 60, Appendix B, or any other
applicable procedures approved by the EPA.
         10. Beginning with the calendar quarter commencing on
January 1, 1983, Defendant shall prepare quarterly reports of
"excess" emissions as measured by the 6'pacity .monitor identified
in Paragraph 9 above.  The reports shall be submitted to the EPA
and the DNR within 30 days from the end of each calendar quarter
and shall  include the following information:
        a.  The magnitude of "excess" emissions in percent
            opacity, the date and time of commencement and
            completion of each time period of excess emis-
            sions, and the cause of each such exceedance.
                               -9-

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        b.  If a malfunction is indicated in the report, the
            corrective actions taken, if any.
        c.  The date and times the opacity monitor was
            inoperative, or of system repairs and adjust-
            ment.        • •
        d.  When the opacity monitor is inoperative,
            all equipment malfunctions and corrective
            actions taken.
        e.  Where no "excess" emissions have occurred, such
            shall be stated.
For the purposes of continuous emissions reporting pursuant to
this Decree, "excess" emissions are those opacity monitor
readings which exceed the applicable opacity standard.  Average
values may be obtained by integration over 6 minutes or by
arithmetically averaging a minimum of 24 equally spaced, instan-
taneous opacity measurements in each 6 minute period.
         11. During the period from January'1, 1983, through
Karch 31,  1983, and for the first 90 days following a demonstra-
tion of compliance pursuant to paragraph Kg), Defendant shall
report all six-minute averages of excess emissions during boiler
operation, Including startup and shutdown.  During all other
times, Defendant shall maintain records of opacity during startup
and shutdown and shall report all six-minute averages pf excess
emissions during boiler operation.  During startup and shutdown,
unless requested otherwise by the EPA or the DKR, Defendant need
only report the times of excess emissions and the highest and
lowest opacity readings.
                               -10-

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         12. After  termination of this Consent Decree, Defendant
shall continue to maintain the .information required for "excess"
emissions  reports at its Filer City facility and make such infor-
mation available to the EPA and the DNR upon request.
         13. Beginning with the calendar quarter commencing on
January  1,  1983, and continuing until all necessary work is
completed,  Defendant shall send to the EPA and the DNR, within 30
days from  the end of each calendar quarter, quarterly reports on
.progress toward  the achievement of final compliance with the
terms of this Decree.  If Defendant fails to meet a compliance
schedule increment, it shall notify the EPA and the DNR within 10
days of  such failure and set forth the cause therefor.
         Hi. EPA and DNR repesentatives may at any time during
normal business hours enter upon the premises of the Filer City
facility to monitor compliance with this Decree including, but'
not limited to, performing stack tests on the bark boiler.
Authorized  contractors of the EPA or the DNR may, upon five days
notice to Defendant, enter upon said premises for purposes of
Inspecting  the facility or records pertaining to the bark boiler
or stack testing of the bark boiler.
         15. All information, reports, and notifications required
by this Decree to be submitted by Defendant shall be sent to the
following addresses:
    Chief,  Air Compliance Branch     Chief, Air Quality Division
    United  States Environmental      Michigan Department of
      Protection Agency, Region V      Natural Resources
    230 South Dearborn               P.O. Box 30028
    Chicago, Illinois  60604         Lansing, Michigan  48909
                               -11-

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                        GENERAL PROVISIONS
          16. As  consideration for Defendant's entry into this
Consent Decree and the assumption of the obligations provided for
herein. Plaintiff and Intervening Plaintiff will refrain from
initiating any other civil enforcement action pursuant to Section'
113(b) of the Act, 42 D.S.C. §7413, Section 304 of the Act, 42
U.S.C. $7604, or applicable state law, with respect to the limi-
tations contained in 'i'his Decree for the emission of particulatc
natter and visible emissions from the bark boiler while Defendant
is In compliance with this Decree.
          17. This Consent Decree in no way affects Defendant's
responsibility to comply with any other state, federal or local
regulations or any Order of the Court including, but not limited
to-, Section 303 of the Act; .42 D.S.C. §7604.
          18. Defendant acknowledges that it has been advised that
It may be subject to the applicable requirements of Section 120
of the Clean Air Act, 42 D.S.C. §7420, but reserves the right to
contest the assessment of any penalties under such Section.
          19. Nothing in this Decree shall be construed as an
admission by Defendant of violations of any provisions of the Act
or of the Michigan SIP.
          20. Notwithstanding any other provision of this Decree,
Defendant may achieve compliance with any emission limitation or
compliance requirement herein applicable to the bark boiler by
permanently ceasing operation of the bark boiler.  Stipulated
                               -12-

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penalties associated with failure to perform any such requirement
or achieve such limitation shall cease to accrue on the date of
actual shutdown and written certification thereof to the EPA and
the DNR.  All stipulated penalties which have accrued prior to
such actual shutdown and certification shall become due and
payable upon demand.
         21. The EPA and the DNR reserve the right to seek a
modification of this Decree to Impose more stringent emission
limitations on the bark boiler, and to enforce such more strin-
gent emission limitations, by reason of any revised (federally
enforceable) state or federal law or regulation, including any
revised implementation plan.  Defendant reserves the right to
seek a modification of this Decree if the EPA promulgates or
approves a revised SIP that contains requirements that are less
                                                                •
stringent than the emission limitations set forth in the Michigan
SIP for the bark boiler as of the date of lodging of this Decree.
It is the intent of the parties that any such modification of
this Decree be accomplished through mutual agreement on a revised
control strategy or compliance schedule (if necessary), followed
by a Joint application to the Court.
         22. The parties anticipate that'the installation of the
add-on collector (sldestream separator) referred to in Paragraph
1 of this Consent Decree will result In compliance with the
partlculate and visible emission limitations further specified in
Subparagraph l(f).  Should such compliance not be achieved with
proper operation and maintenance of such equipment, PCA may apply
                               -13-

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 to1 th« MAPCC for the establishment of an alternate visible emis-
 sion limitation, pursuant to MAPCC Rale R 336.1301(1)(c), the
 establishment of a partlculate mass emission limitation (not to
 exceed 0.5 lb per 1,000 pounds of exhaust gases, corrected to 50
 percent excess air), or both.  In either case, the DNR agrees not
 to oppose such application on the basis that compliance can be
 achieved by the installation of pollution control equipment
 additional to that required by this Consent Decree, unless such
 additional pollution control equipment Is required because o£ a
 change in the applicable law.  Such application shall In no way
 relieve PCA of Its obligation to fully and timely comply with all
 interim and final requirements as set forth in this decree or
 from any liability for payment of stipulated penalties pursuant
 to Subparagraph 27(e)(l).
         23. No provision of any installation permit necessary to
 implement the compliance program set forth in Paragraph 1 shall
be construed to conflict with any express provision of this
 Consent Decree.
         24. Nothing in this Consent Decree shall be construed to
 limit the right of the MAPCC and the DNR to Impose and enforce
more stringent emission limitations or'pollutlon control equip-
ment requirements for the bark boiler as the result of any revi-
 sion to the Commission's rules.

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                     CIVIL PENALTY AND COSTS
         25. In consideration of Intervening Plaintiff's agree-
ment to settle this action, Defendant agrees to reimburse the
State of Michigan the sum 'of $40,000 for its costs and expenses
associated with this case.  Payment shall be made by certified
check payable to "Treasurer, State of Michigan" and sent to the
Assistant in Charge, Environmental Protection Division, Depart-
ment of the Attorney General, Law Building, Lansing, Michigan
48913, within 15 days after final entry of this Decree.
         26. The United States has determined that, pursuant to
Section 113 of the Act, 42 U.S.C. §7413 and the Civil Penalty
Policy of July 8, 1980, Defendant should pay a civil penalty of
$40,000.  Payaent shall be made by certified check payable to
"Treasurer, United States of America" and sent to the Regional
Hearing Clerk, United States Environmental Protection Agency,
Region V, 230 South Dearborn, Chicago, Illinois 60604, within 15
days after final entry of this Decree.

                       STIPULATED PENALTIES
         27. It is hereby stipulated and agreed among the parties
that unless excused by the provisions of Paragraph 28 of this
Decree the following stipulated penalty provisions shall apply
and may be enforced by the United States:
         a'.  If Defendant fails to complete the installation of
    all pollution control equipment required by this Decree by
    the date specified (in Paragraph 1 or 3, whichever is
                               -15-

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applicable) it shall be liable for a stipulated penalty of
$7,500 for each day It operates the bark boiler without the
required pollution control equipment.
     b.  If Defendant Tails to Issue a purchase order for the
sidestream collector by the date specified in Paragraph l(c),
it shall be liable for a stipulated penalty of $2,000 for
each day such failure continues.
     c.  If Defendant fails to meet any other interim date of
a construction schedule (in Paragraph 1 or 3, whichever is .
applicable), it shall be liable for a stipulated penalty of
$1500 for each day such failure continues.  Any penalty
liability under this subparagraph will be forgiven if
Defendant meets the final compliance date in the applicable
schedule for'completion of the installation of the required
                                                      *
pollution control equipment.
     d.  If Defendant fails to meet any interim testing
requirement or emission limitation for the bark boiler it
shall be liable for the following stipulated penalties:
         1)  The sum of $1000 for each day that the
             failure to meet a testing requirement
             continues;
         2)  The sum of $1,500 for each day that a
             violation of an interim opacity limit
             continues;
                           -16-

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         3)  The sun of $7,000 for each day that a
             violation of an Interim particulate mass
             emission limitation continues.
     e.  If Defendant -falls to demonstrate final compliance
with the applicable emission limits under Paragraph 1  (if
applicable) by December 31, 1983, or falls to maintain
compliance thereafter, it shall be liable for stipulated
penalties'as follows:
         1)  The sum of $2,500 per day for each day
             failure to demonstrate and/or maintain
             compliance with the specified particu-
             late mass emission limit in Subparagraph
             l(f) continues.  Defendant's total
             liability under this subparagraph shall
             not exceed $20,000.
         2)  The sum of $7,000 for each day failure
             to demonstrate and/<3r maintain com-
         •     ,
             pliance with KAPCC Rule R 336.1331
             continues.
         3)  If Defendant fails to demonstrate and/or
             maintain compliance with MAPCC Rule R
             336.1331 and also fails to comply with R
             336.1301, the additional sum of $2,500
             for each day failure to demonstrate and/
             or maintain compliance with MAPCC Rule R
             336.1301 continues.
                           -17-

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     f.  If Defendant fails to demonstrate final COD-
pllance with the applicable emission limits under
Paragraph 3 (if applicable) by July 31, 1984, or fails
to maintain compliance thereafter, it shall be liable
for stipulated penalties as follows:
         1)  The sum of $2,500 for each day failure
             to demonstrate and/or maintain com-
             pliance wj.th the specified particulate
             mass emission limit in Subparagraph 3(e)
             continues.  Defendant's total liability
             under this subparagraph shall not exceed
             $20,000.
       '  2)  The sum of $7,000 for each day failure
             to demonstrate and/or maintain com-
             pliance with MAPCC Rule R 336.1331
             continues.
                 •     •
         3)  The sum of $2,500 for each day failure
             to demonstrate and/or maintain com-
             pliance with MAPCC Rule R 336.1301
             continues.

     g.  If Defendant fails to comply with any of the
operation and maintenance requirements set forth in
Appendix B of this Decree, it shall be liable for a
                           -18-

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    stipulated penalty of $2,500 for each  day  such  failure
    continues.
         h.  If Defendant fails to submit  any  quarterly
    "excess11 emissions reports pursuant to Paragraph 10  or
    progress reports pursuant to Paragraph 13, it shall  be
    liable for a stipulated penalty of $500 for each day
    such failure continues.
One-half of any payment made under this paragraph shall  be  by
certified check payable to "Treasurer, United  States of  America11
and sent as specified in Paragraph 26, within  15 days after a
demand for payment has been made. The remaining one-half of any
payment made under this paragraph shall be by  certified  check
payable to "Treasurer, State of Michigan"  and  sent as specified
             i
in Paragraph 25, within 15 days after a demand for payment  has
been made.  Such payments shall not be considered the exclusive
remedy for violation of this Decree.

                          FORCE KAJEURE
         26. Defendant's obligation to meet any requirement set
out in this Decree, including achievement  of compliance  with any
specific emission standard or regulation,  may  only be excused to
the extent that such delay is beyond the control of, and without
the fault of Defendant.  Defendant shall notify the EPA  and the
DNH in writing within twenty  (20) days of  the  event which causes
or may cause the delay, describing in detail the anticipated
length of the delay, the precise cause or  causes of delay,  the
                               -19-

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measures  taken  and  to  be  taken  by  Defendant  to  prevent  or mini-
mize  the  delay,  and  the timetable  by  which those measures wlll.be
implemented.  Defendant will  adopt all  reasonable measures to
avoid or  minimize any  such delay.
       i
          29.  If  the  parties agree  that  the delay or anticipated
delay was beyond the control  of, and  without fault of,  Defendant
this may  be so  stipulated and the  parties may petition  the Court
for appropriate modification  of this  Decree.  If the parties are
unable to reach  such agreement, any party may petition  the Court
for appropriate  relief.  The  burden of  proving  that any delay was
beyond the control of, and without fault of, Defendant  is on
Defendant.  Failure by Defendant to comply with the notice re-
quirements of this paragraph  shall  render Paragraphs 28 through
30 void and of no force and effect  as to the particular incident
involved and constitute a waiver of Defendant's right to request
an extension of Its obligations under this Decree based on such
incident.  Increased cost, by Itself, shall not constitute an
appropriate Justification, for the  purposes of  this paragraph, to
excuse noncoropllance with any of the  terms of this Decree.
         30. An extension of  one compliance date based  upon a
particular incident does not  necessarily mean that Defendant
qualifies for an extension of a subsequent compliance date or
dates.  Defendant must make an Individual showing of proof re-
garding each incremental step or other  requirement for  which an
extension is sought.
                               -20-

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                           TERMINATION
         31. This Decree shall terminate one year after the date
scheduled for demonstration of compliance in Paragraph Kg) or
3(f), whichever is applicable, or at such earlier date as Defen-
dant has demonstrated and maintained compliance with the require
ments of Paragraph l(f) or 3(e), whichever is applicable, as may
be modified by the MAPCC pursuant to Paragraph 22, for a con-
tinuous period of six months, unless either party petitions the
'Court for an extension of this Decree and the Court grants such
extension.  Until termination of this Decree, Jurlsdication is
retained by this Court for the purpose of enabling any party to
this Decree to apply to this  Court at any time for the enforce-
ment of any terms of this Decree.
For Plaintiff - United States of America
By
  F.- KINRY HACHT II
  Acting Assistant Attorney General
  Land and Natural Resources Division
  United States Department of Justice
                                           Bated
                                                  _  »
                                                    *, H
By
  Assistant United States Attorney
  West/ern Dis/triat of Michigan
Ey
  VALDAS
  Regional Admi
  U.S. Environm
    Protection
            ADAJ'XU
                KUS     XX
                istrato/f   )
               ental   ^^^-X
                gency, Region V
                                           Dated
                                           Pated
                               -21-

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By    K V-*-*lrvfc £Jrt,Wn.~                 Dated
  DE3CRAK CAREER
  Assistant  Regional  Counsel
  U.S. Environmental
    Protection  Agency, Region V
By I £A~Jk^L *i r f^j-	          Dated VW^, /ft?
  Courtney M.C Price            .                 "Tj
  Special Counsel for Enforcement                ^
  United States Environmental
    Protection Agency
For Intervening Plaintiff - State of Michigan, _et al.;



                              	          Dated_^**X7
  E.E.  ALENTINE
  Assistant Attorney General,
  Environmental Protection Division
  STEWART FREEM;
  Asslstant-In-Charge
  Environmental Protection Division
For Defendant - Packaging Corporation of America
By '  ^- 3\v^Vc^r'—^—^	          Dated
  K.R.  HAYMON  "A
  President    ^—^
  Packaging Corporation of America
Attest :
       A. A. Kaller
       Assistant Secretary
       Packaging Corporation of America
                               -22-

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         Consent Decree entered  In  accordance with the foregoing

this 	 day of 	,  19?-3.
                                "Judge" "Ben lain in F.  Gibson
                                United States District Court
                                For  The Western District of
                                   Michigan
By
  Deputy Clerk
                                -2?-

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                                                           JUL 151983
          IN THE UNITED STATES DISTRICT COURT  FOR  THE
               SOUTHERN DISTRICT OF VEST VIRGINIA

                  Civil Action No.  77-1163-BL
UNITED STATES OF AMERICA,        )

             Plaintiff,          )

v.                               )
                                 )        CONSENT ORDER
CITY OF WELCH, McDOWELL COUNTY,  )
WEST VIRGINIA, a municipal       )
corporation, WELCH SANITARY      )
BOARD, and the STATE OF WEST     )
VIRGINIA,                        )
                                 )
             Defendants.         )
     THIS MATTER having come before the Court upon the

application of the United States of America for entry of this

order; and

     WHEREAS, the United States of America, the City of Welch

(hereinafter, "Welch"), Welch Sanitary Board (hereinafter,

"Board"), and the State of West Virginia have consented to

entry of this order;

     WHEREAS, this Court has jurisdiction of this action

pursuant to 28 U.S.C. 1345 and 33 U.S.C. 1319(b);

     WHEREAS, venue is proper in this Court pursuant to 28

U.S.C. 1391 (b) and (c); and

     WHEREAS, the Court finds that: Welch owns a sewage

collection system in McDowell County, West Virginia, which

discharges pollutants into Tug Fork; Welch controls the

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                             - 2 -
financing and initiation of construction of sewage treatment
works for that city; Welch created the Board to supervise,
control, administer, operate and maintain any and all works for
the collection and treatment of sewage which are owned by Welch;
Tug Fork is a navigable waterway as defined in the Clean Water
Act, section 502(7), 33 U.S.C. 1362(7); on August 23, 1974,
pursuant to 33 U.S.C. 1342, and based upon an application
submitted on behalf of the Board, the United States (through
the U.S. Environmental Protection Agency) issued a national
pollutant discharge elimination system (hereinafter,  "NPDES")
permit for the discharge of pollutants from the Board's sewage
treatment system; the terms or conditions of the permit were
not contested by the Board, Welch, or the State; the  permit
  .                                                        •
became effective on September 22, 1974; the permit required
the Board to submit to the United States not later than March
22, 1975, a compliance schedule for termination of its discharge
in accordance with 33 U.S.C. 1311 (b) (1) (B); the Board has
failed to submit the compliance schedule in violation of the
permit; on May 17, 1976, the United States pursuant to 33
U.S.C. 1319(a)(3) and (4) issued findings of violation and an
order for compliance to the Board, citing the Board for
violations of its permit conditions and directing the Board to
submit to the United States not later than June 18, 1976, a
schedule for compliance; the Board has failed to submit the
schedule for compliance in violation of the May 17, 1976,
order; neither Welch nor the Board have constructed a sewage
                                                              *^.
treatment works capable of achieving effluent limitations

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                             - 3 -

based upon secondary treatment as defined by the Adminstrator
of the Environmental Protection Agency pursuant to 33 U.S.C.
1314(d)(l); Welch and the Board have continued to discharge
pollutants within the meaning of 33 U.S.C. 1311; the discharge
of pollutants by Welch and the Board is not in compliance with
an NPDES permit and is in continued violation of 33 U.S.C.
1311; and
     WHEREAS, the parties have agreed that this order shall be
lodged and made available for public comment prior to entry by
the Court, pursuant to the procedures identified at 28 C.F.R.
50.7; and
     WHEREAS, entry of this order is in the public interest;
                        *
NOW THEREFORE,
     Pursuant to F.R.C.P. 65, IT IS on this 	 day of
	, 1983, ORDERED that:
     1'.  Municipal compliance plan.
     Within 120 days of the entry of this order, or by November
30, 1983, whichever is earlier, the Board shftll pursuant to
F.R.C.P. 5 file with the Court and serve upon an individual
designated by the United States Environmental Protection Agency
(hereinafter, "EPA designate") and serve upon an individual
designated by the West Virginia Department of Natural Resources
(hereinafter, "WVDNR designate") a plan (hereinafter,
"municipal compliance plan") for achieving compliance with the
Clean Water Act.  The Board shall file a municipal compliance
plan which:

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                             - 4 -

         (a) has been certified by a registered professional
engineer;
         (b) identifies a treatment technology which the Board
proposes to use and which will achieve the level of effluent
quality attainable through the application of secondary
treatment;
                       - f
         (c) proposes that construction of the treatment facility
which will achieve the level of effluent quality Attainable
through the application of secondary treatment will be started
by no later than May 1, 1984;
         (d) proposes that construction of the treatment facility
will be completed no later than May 1, 1986;
         (e) proposes that the level of effluent quality
attainable through the application of secondary treatment will
be achieved no later than August 1, 1986;
         •     i
         (f) estimates the capital requirements of the treatment
technology proposed;
         (g) estimates the operation and maintenance costs of
the treatment technology proposed;
         (h) identifies the financial mechanisms proposed to be
used by the Board for facility construction;
         (i) identifies the financial mechanisms proposed to be
used by the Board for generating adequate revenues for operation
and maintenance;
     2.  Modifications to municipal compliance plan.  The
United States may inform the Board of any modifications which
the United States proposes to the municipal compliance plan.-

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                             - 5 -

In the event the Board agrees to modify the municipal compliance
plan as proposed by the United States,  the Board shall pursuant
to F.R.C.P. 5 file with the Court, and  serve upon the EPA
designate and the WVDNR designate, the  modifications to which
the Board and the United States have agreed.  In the event the
Board does not agree to modify the municipal compliance plan
as proposed by the United States  (or in the event the Board
fails to file with the Court modifications to which the United
States and the Board have agreed), the  United States may
pursuant to F.R.C.P. 5 file with  the Court and serve upon the
Board proposed modifications to the municipal compliance plan.
The municipal compliance plan shall be  deemed to be modified
      •
as proposed by the United States unless, within fourteen days
of the filing of the proposed modification, American Cyanamid
applies to the Court pursuant to F.R.C.P. 7 for further order.
     3.  Implementation of municipal compliance plan;  The
Board shall implement the municipal compliance plan filed by
the Board, as modified by (a) modifications filed with the
Court to which the Board and the United States have agreed,
(b) modifications filed by the United States and for which
timely motion for further order has not been made by the Board,
and (c) further order of the Court.
     A.  Minimum effluent limitations.   After August 1, 1986,
the Board and Welch are enjoined  from discharging any effluent
from the collection system or treatment works that does not
achieve the following effluent limitations:
        (i) the arithmetic mean of the  values for biological

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                             - 6  -

oxygen demand for effluent samples collected in any period of
thirty consecutive days shall not exceed 30 milligrams per
liter;
         (ii) the arithmetic mean  of the values for biological
oxygen demand for effluent samples collected in any period of
seven consecutive days shall not exceed 45 milligrams per
liter;
         (iii) the arithmetic mean of the values for biological
oxygen demand for effluent samples collected in any period of
thirty days shall not exceed 15 percent of the arithmetic mean
of the values for influent samples collected at approximately
the same times during the same period;
         (iv) the arithmetic mean of, the values of suspended
solids for effluent samples  collected in any period of thirty
consecutive days shall not exceed 30 milligrams per liter;
         (v) the arithmetic mean of the values of suspended
solids for effluent samples collected in any period of seven
consecutive days shall not exceed 45 milligrams per liter;
         (vi) the arithmetic mean of the values of suspended
solids for effluent samples collected in a period of thirty
consecutive days shall not exceed 15 percent of the arithmetic
mean of  the values for influent samples collected at approximately
the same time during the same period;
         (vii) the effluent values for pH shall be maintained
within the limits of 6.0 to 9.0; and
         (viii) the fecal coliform content of the effluent shall
not exceed 200 per'100 milliliter as a 30-day geometric mean

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                             - 7 -

based on not less than five samples during any 30-day period

nor exceed 400 per 100 milliliter in more than ten percent  of

all samples during any 30-day period.

     5.  Compliance vith NPDES permit.   After August 1,  1986,

the Board and Welch are enjoined from discharging any pollutant

from the collection system or treatment works except in

compliance with an NPDES permit issued pursuant to the Clean

Water Act.

     6.  Penalty.  The Board shall pay a civil penalty of

[amount], by tendering a check in that amount payable to the

order of the Treasurer of the United States within thirty
                       •
days of the entry of this order.

  '  .7.  Stipulated penalties.  If the Board violates any

provision of this order, the Board shall pay a civil penalty

of
                                 •     t

        (i) $100 per day for each of the first 30 days of

violation,

        (ii) $200 per day for each of the next 60 days of

violation,

        (iii) $500 per day for each of the next 60 days of

violation, and

        (iv) $1000 per day for each of the next 60 days of

violation.  Thereafter, the United States may apply to the

Court for appropriate penalties.  The United States may apply

t-o the Court at any time for other non-penalty relief in the

event of any violation of the Act, of any permit issued

pursuant to the Act, or of this order.

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                             - 8 -


    "8".  Nonwaiver provision.  This order in no way relieves

any defendant of responsibility to comply with any other State,

Federal or local law or regulation.  The order dated May 17,
           4
1976, of the United States EPA retains full force and effect.
                               U.S.D.J.

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OR.1-2

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENC
                        WASHINGTON. D.C. 20460
                                     * si n n
                         January 11,  1988
MEMORANDUM
SUBJECT:  Procedures for Modifying Judicial Decrees
FROM:     Thomas L. Adams, Jr.     *r-»i^Jfcr*v'*-i» V..
          Assistant Administrator for Enforcement
            and Compliance Monitoring

TO:       Regional Administrators
          Regional Enforcement Contacts
          Regional Counsels
          Regional Program Division Directors
          Program Office Enforcement Directors


     The purpose of this memorandum is to clarify procedures for
modifying consent decrees and other judicial orders entered in
EPA enforcement cases.

     Consent decree "modifications" are changes to a consent
decree proposed jointly to the court by the Federal government and
a defendant,largely  to address circumstances which have arisen
since the entry of the consent decree (such as force majeure
events or other unanticipated circumstances).  Thus,these
"modifications" are distinct  from Federal government unilateral
enforcement actions requiring the violator  to comply with  the
terms of the decree and imposing sanctions.  Consent decree
modifications  should  be addressed as follows:

     o  As soon as the need to modify a consent decree  is
        discovered, the Region should send  a letter to  the
        appropriate OECM-AEC and DOJ-Environmental Enforcement
        Section Chief notifying them of the intent to open
        negotiations  with  the defendant.  The letter should
        contain summary information  sufficient  to apprise  OECM
        and DOJ of relevant facts, issues,  and proposed solutions.

     o  Consistent with appropriate  consultation procedures with
        OECM or DOJ,  the  Region (along with OECM or DOJ, as
        appropriate)  may  proceed  to  negotiate a  modification  of
        the consent decree in the manner described in the  letter.

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     o  OECM retains authority for approving any modifications
        on behalf of EPA.  DOJ retains authority for approving
        any modifications on behalf of the United States.

     o  After OECM and DOJ officials have approved the modifica-
        tions, the DOJ attorney will present the proposed  consent
        decree modification to the appropriate court for approval.


SPMS CONSENT DECREE TRACKING MEASURE

     A consent decree violation handled through modification will
be considered addressed under the SPMS consent decree tracking
measure when a modified consent decree is signed by the AA-OECM
and DOJ representative.  Until these officials approve the
modification, the Region will report the consent decree in the
"in violation with action planned" category.

     If you have any questions regarding these procedures, please
contact Lisa Oyler, Compliance Evaluation Branch, OECM, at 475-6118


cc:  Roger J. Marzulla, DOJ
     David Buente, DOJ
     Gerald A. Bryan, OCAPO
     Thomas Gallagher, NEIC
     Deputy Assistant Administrators, OECM
     Associate Enforcement Counsels, OECM

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OR.2

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OR.2-1

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     i          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
	'                     WASHINGTON, D.C.  20460
                               FEB  6 1990
                                                         OFFICE Zf
                                                       ENFORCEMEN'"NO
                                                      COMPLIANCE
    MEMORANDUM

    SUBJECT:   Manual on Monitoring and Enforcing
               Administrative and Judjj&ial Orders
     FROM:      James M.  Strock^J"
               Assistant Administrator

     TO:        Assistant Administrators
               Regional  Administrators, I-X


          This memorandum transmits the EPA Manual on Monitoring and
     Enforcing Administrative and Judicial Orders.  The Manual
     provides general guidance to EPA enforcement staff on their roles
     and  responsibilities in monitoring and enforcing final order
     requirements.   The  Manual applies to all regulatory enforcement
     programs with the exception of the CERCLA (Superfund) Program.
     The  term "order" includes judicial consent decrees and
     administrative consent orders.  The Manual also outlines a
     process for working with the EPA Financial Management Offices
     (FMOs)  and the Department of Justice for monitoring and
     collecting penalties.

          The Manual was prepared in response to recommendations in
     several Office of Inspector General (OIG) audit reports that OE,
     the  Program Offices and the OARM Financial Management Division
     (FMD)  develop clearer guidance and management systems for
     ensuring that administrative and judicial order requirements are
     aggressively monitored until compliance is achieved.  A major
     concern of the OIG  was the failure of enforcement staff to notify
     the  Regional Financial Management Offices (FMOs) when
     administrative or judicial penalties have been assessed so that
     these "accounts receivables" can be entered into and tracked in
     the  Agency's Integrated Financial Management System  (IFMS).
                                                           Pnnisa ::•.-;.-..: • :

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     The Manual has received two Agency-wide reviews, in May 1987
and October 1988.  Both reviews surfaced gaps and deficiencies in
the Manual's attempt to designate areas of responsibility and
information sharing.  The final Manual contains procedures
designed to address the deficiencies.

     The OARM FMD has drafted revisions to Chapter Nine of its
Resource Management Directives to conform with the guidance
agreed to in this Manual.  These Directives will soon undergo
green border review and may require some adjustment:? to the FMD-
related sections of the Manual.  Accordingly, the Manual will be
updated as necessary.  A summary of the major provisions of the
Manual, including the latest revisions, is contained in
Attachment A.

     OE is available to assist you in implementing the revised
procedures.  Questions should be directed to Renelle Rae, Chief
of the Program Development Branch, at 475-8777.

Attachments


cc:  Deputy Regional Administrators
     Regions I-X

     Regional Counsels
     Regions I-X

     Regional Financial Management Offices

     Associate Enforcement Counsels

     Associate General counsels

     Headquarters Enforcement Office Directors

     Financial Management Division Director

     Deputy Assistant Administrator for Criminal Enforcement

     Acting Director, National Enforcement Investigations Center

     Chief, Environmental Enforcement Section, DOJ

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                                                    Attachment fl
                MAMIJAL ON MONITORING AND ENFORCING


          SUMMARY OF PROVISION AND RESPONSE TO COMMENTS

     Chapter l - Monitoring and Reporting the Status of Orders.

     Roles and Responsibilities

     The Regional Program Office (RPO) is responsible for
monitoring (i.e. routinely checking) compliance with the
technical requirements in administrative and judicial orders.
The Regional Financial Management Office (FMO) is responsible for
monitoring and collecting administrative penalties as "accounts
receivables".  The Department of Justice (DOJ) is responsible for
monitoring and collecting judicial penalties and for reporting
the status of penalty collection to the EPA Headquarters
Financial Management Division (HQ-FMD).


     Reporting on Penalty Payments

     While the RPO is not responsible for monitoring collection
of administrative or judicial penalties, RPO is responsible for
verifying that penalties have been paid before terminating an
order or reporting a violator in full compliance.  Therefore, RPO
data systems should include the amount of penalties assessed in a
final order and be able to report on a "yes/no" basis whether the
total amount of the administrative or judicial penalty has been
collected.  The OE Docket also will report the amount of the
judicial penalty assessed and contain a yes/no statement on
whether the total amount assessed has been collected.  The
Integrated Financial Management System (IFMS) maintained by the
Headquarters and Regional FMOs will be the official EPA system
for reporting the numerical (dollar) amounts of enforcement
penalties collected.


     EPA Enforcement Payment Accounts Receivable Control Number

     In order to cross-walk between program office systems and
the IFMS, the Manual recommends that all programs enter into
their program data system the assigned IFMS accounts receivable
control number for the penalty assessed in each final order.
When the Regional FMO receives a copy of a final order and
establishes the accounts receivable in IFMS, the FMO will provide
the RPO, the ORC and the Regional Hearing Clerk with the accounts
receivable control number.  The goal is to have the IMFS accounts
receivable control number be the common identifier number in all
data systems that report penalty information.

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     Several of the comments received on the Manual expressed
concern that some program office data systems do not have the
ability to report penalty payments on a "yes/no" basis or to
include the IFMS accounts receivable control number.  These
additions would require modifications to their systems.  Program
Offices should follow the Manual's guidance, wherever possible
including these penalty tracking modifications as they make other
improvements to their system.  OE will work with the Program
Offices to ensure that these changes are made.  As of the date of
the issuance of the Manual, the IMFS will be recognized as the
official EPA record of the total amount of dollars collected on
every penalty assessed in a final order.


     Chapter 2 - Collecting Administrative Penalties.

     Roles and Responsibilities

     The RPO (or the ORC in some Regions)  is responsible for
sending a copy of the final order assessing a penalty to the FMO.
The FMO is responsible for monitoring and collecting the penalty
as an accounts receivable for the first 120 days.   The ORC is
responsible for collecting the penalty after 120 days in default.
The Regional Hearing Clerk is responsible for keeping the
official administrative record for the case and including any
penalty payment information received from the RPO, ORC or FMO in
the record.
     Notifying the FMO of Assessed Administrative Penalties

     The 1989 OIG audits of the Regional Financial Management
Offices found that the FMOs still are not receiving from
enforcement offices all copies of final orders that assess
penalties.   The Manual adds a documentation procedure for
ensuring that the responsible enforcement office sends to the FMO
a copy of the order and the transmittal letter to the violator.

     A new form entitled:  "EPA Enforcement Payment Accounts
Receivable Control Number Form", hereafter referred to as the
Form (See last page of Attachment tl), will provide a record that
the responsible EPA office has sent a copy of the final order to
the FMO.  The Form also will document that the FMO provided the
offices designated on the Form with the IFMS accounts receivable
control number for each assessed penalty.  Under most enforcement
programs, the RPO has been delegated the responsibility for
administrative enforcement, so the Manual presumes the RPO is the
responsible party ("originating office") for filling out the
Form, and sending the Form with a copy of the final order and
transmittal letter to violator to the FMO.  In some Regions, the
ORC may have assumed the "originating office" responsibility.  A
copy of the completed Form that includes the IFMS accounts

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receivable control number should be included in the case file and
available for review in the context of an audit.
     Collecting. Enforcing and Terminating Administrative Penalty
     Payments

     The procedures for coordinating among the FMO, RPO and ORC
in collecting, enforcing and terminating administrative penalty
payments also have been refined.  At the request of FMD, the time
frames have been added for ORC review of enforcement options
regarding penalties that have not been paid within 120 days.
The process for collecting, enforcing.or terminating orders is as
follows:

     Once the FMO receives a copy of the final order and
establishes the accounts receivable, the FMO will monitor and
collect the receivable using standard debt collection practices.
The FMO will send the RPO, ORC and Regional Hearing Clerk a copy
of payments received.  These payments will be identified by the
IFMS Accounts Receivable Control Number.

     Uncollected penalties, ajt the end of 120 days and after
three demand letters have been issued,  will be referred by the
FMO to the ORC for review and option selection.   The ORC, after
consulting with the RPO, must notify the FMO, in-writing within
30 days from receipt of debt from the FMO, of the collection
option the ORC will pursue.  Options include referring the
penalty debt to DOJ for judicial collection, pursuing additional
FMO collection activities such as outside collection agencies, or
requesting termination of the debt.  However, to uphold EPA's
enforcement authority, administrative penalty debts should be
terminated only under exceptional circumstances.  The ORC's
written response to the FMO should be included in the official
case file.

     Several reviewers of the draft Manual suggested that EPA and
DOJ institute a direct referral process from the ORC to the U.S.
Attorneys' Office (USAO) for administrative penalty debt
collection.  The current delegation of authority by the Attorney
General to the Land and Natural Resources Division precludes a
direct referral to the USAO of EPA enforcement cases including
administrative penalty collection cases.


     Chapter 3 - Collecting Judicial Penalties.

     Roles and Responsibilities

     The Manual recognizes that the DOJ Land and Natural
Resources Division, Environmental Enforcement Section,
hereinafter referred to as LNRD-EES, is responsible for

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monitoring judicial penalty payments and the U.S. Attorneys'
Office is responsible for collecting payments through the DOJ
lockbox system and pursuing uncollected debts.  While EPA is not
responsible for collecting judicial penalty payments, it is the
policy of EPA Financial Management Division that all judicial
penalty payments that are the result of an EPA enforcement action
be recorded in the IFMS as "accounts receivables".  As EPA
receivables, these debts must be monitored by the Regional FMO
until collected or terminated.  This requires all DOJ offices and
all EPA offices involved with the penalty to have a common
identifier number—the IFMS accounts receivable control number.

     Superfund cost recovery payments (debts) obtained through
judicial actions (court orders or consent decrees) are collected
differently than judicial penalties.  All cost recovery payments
(administrative or judicial)  are collected by the EPA Regional
FMOs through the EPA Regional Superfund lockbox depositories.
Even though a judicial cost recovery case has been handled by the
USAO, Agency resource management directives (RMDS 2550)  governing
financial management of the Superfund Program require that EPA
FMOs monitor and collect Superfund debts.


     Obtaining Copies of Final Orders and Notifying the FMO of
     Penalties Assessments and Superfund Cost Recovery Payments

     A major concern raised in the review on the draft Manual is
that the ORC and the Regional FMOs do not consistently get
copies of the final (entered) judicial orders (enforcement
penalty or Superfund cost recovery) from the USAO.  Under the
guidance specified in Chapter Three, the LNRD-EES will be
responsible for ensuring that the USAO sends a copy of the
entered final order including all consent decrees to the
appropriate ORC.    The ORC is responsible for following up with
the LNRD-EES or USAO if an order is not received.   Unless another
office is designated in a Region, the ORC is responsible for
sending to the FMO a copy of the final order with the attached
EPA Enforcement Payment Accounts Receivable Control Number Form.


     The FMO will fill in the IFMS accounts receivable control
number on the Form and send a copy of the Form to the parties
designated on the Form, including the DOJ LNRD-EES.   The Form
containing the IFMS accounts receivable control number will be
retained in the case file as documentation.
     Reporting the Status of Penalty Payments

     DOJ LNRD-EES will enter the IFMS accounts receivable control
number in its Lands Docket Tracking System (LOTS) and will
provide quarterly reports to the Headquarters FMD on the status

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of EPA penalty payments using the IFMS number.   The Headquarters
FMD will distribute copies of these reports to  the Regional FMOs.
The FMOs will update the IFMS with the data received from LNRD-
EES.  The IFMS will be the official EPA system  for reporting the
dollar amounts of judicial enforcement penalties collected.
Other EPA data systems will, as with administrative penalty
payments, provide information on judicial penalty collection in a
"yes/no penalty paid" format only.   To interface with the IFMS,
other EPA program offices can include the IFMS  accounts
receivable control number in their data systems.


     Chapter 4 - Enforcing Orders.

     This chapter remains unchanged and contains existing
guidance on available enforcement tools such as motions for
specific enforcement, contempt actions, contractor listing, etc.
The Appendix contains procedures for working with DOJ Land and
Natural Resources Division on modifying judicial orders or
collecting stipulated penalties under judicial  consent decrees.

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       EPA ENFORCEMENT  ACCOUNTS  RECEIVABLE CONTROL  NUMBER FORM
TO BE FILLED OUT RT ORIGINATING OFFICE:
(Attach a copy of the final order and transmittal letter to
Defendant /Respondent )
This form was originated by: 	 	
                             [Name of contact person]    [Date]
in the	at	
                 [office]                    . [phone number]

I	1  Non-SF Jud. Order/Consent   i	1  Administrative Order/
1	'  Decree. USAO COLLECTS.      '	'  Consent Agreement
                                      FMO COLLECTS PAYMENT.
     nSF Jud. Order/Consent
     Decree.  FMO COLLECTS.

'	'  This is an original debt    '	'  This is a modification

Name of Person and/or Company/Municipality making the payment
— ^ — — — — ^ — — ^ — — •^ —• —• —i — ^ — — — — -I— — ^ ^ ^ — — ^ ^ — — — — — — — — — — ^ — — _ MB __ ^ ^ __ _ *f. _ _ __ _ ^ _ _„ ^ ^ _« «_ ^ ^ .^ .^ __ ^ .
The Total Dollar Amount of Receivable 	
(If in installments, attach sch. of amounts and respective due dates)

The Case Docket Number  	

The Site-Specific Superfund (SF) Acct. Number 	

The Designated Regional/HQ Program Office  	
TO BE FILLED OUT BY LOCAL FINANCIAL MANAGEMENT OFFICE:

The IFMS Accounts Receivable Control Number 	

If you have any questions call: 	
                                  [Name of Contact]     [Date]
in the Financial Management Office, phone number;	
JUDICIAL ORDERS: Copies of this form with an attached copy of the fro
page of the final Judicial order should be mailed to:

1. Debt Tracking Officer                 2. Originating office (ORC)
   Environmental Enforcement Section     3. Designated Program Office
   Department of Justice/Rm. 1647D
   P.O.Box 7611, Benjamin Franklin Station
   Washington, DC  20044

ADMINISTRATIVE ORDERS: Copies of this form with an attached copy of
the front page of the administrative  order should be sent to:

1.  Originating office                2. Designated Program Office
3.  Regional Hearing Clerk            4. Regional Counsel

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                               GLOSSARY

Below are key terms for filling out the EPA Enforcement Payment
Account Receivable Control Number Form.

EPA Originating Office - In the case of administrative orders, the
EPA office that originates and sends a copy of the signed final order
and the transmittal letter to the defendant/respondent is responsible
for filling out the top half of the Form.   In the case of judicial
orders, the U.S. Attorneys' Office (USAO)  will in most cases be the
entity that sends a copy of the final (entered) order or consent
decree to the defendant with a transmittal letter.  By Directive, the
USAO will send to the appropriate Office of Regional Counsel (ORC),  a
copy of the entered order and transmittal  letter.  Unless otherwise
designated in a Region, the ORC will be the EPA originating office
responsible for filling out the Form and sending a copy of the
entered order to the FMO.

Designated Regional Headquarters Program Office - This is the Office
responsible for enforcing the statutory program (e.g., CAA,  CWA,
TSCA, RCRA, FIFRA, Superfund, etc.) that governs the violation.   The
designated program office is responsible for tracking the technical
(non-penalty) requirements of the order.  This program win  use the
IFMS accounts receivable number to check with the FMO on the status
of payment of the administrative or judicial penalty.

Case Docket Number -  This is the number in the upper right  hand
corner of the final order that is provided by the Regional Hearing
Clerk (administrative) or the Clerk of the Court (judicial).

Site-Specific Superfund Account Number - The ten digit number used in
the Superfund Program to identify a particular site so that  monies
can be tied to specific sites and activities.

IFMS Accounts Receivahio fontrol Number -  When the FMO is provided
documentation (final order) on the creation of a debt, the FMO enters
the debt into the Integrated Financial Management System (IFMS)  and
creates a new accounts receivable.  If there are several violators
under the same case that will be making a  payment, then each "payee"
receives a different control number.  The  FMO will fill out a
separate copy of the Form for each payee and accounts receivable
control number.
The completed version of the Form with the EPA Originating Office and
the FMO portions of the form filled in should be included in the
enforcement case official file as a record for audit purposes that
the final order was sent to the FMO and that an accounts receivable
control number was provided.

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       MANUAL
          ON
     MONITORING
         AND
      ENFORCING
   ADMINISTRATIVE
         AND
   JUDICIAL ORDERS
       January 1990
     Office of Enforcement
U.S. Environmental Protection Agency

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                           ACKNOWLEDGEMENTS
This manual is the end result of several management studies conducted
by the Office of Enforcement (OE) and the Office of Administration and
Resources Management (OARM) in FY 1987 and 1988.  Acknowlodgement for
their contribution to this Manual goes to Renelle Rae, Project Leader;
Lisa Nelson and Linda R. Thompson, OE Program Development and Training
Branch; Robert Banks, Eloise Furbush and Bill Watt, OE Compliance
Evaluation Branch;  Lisa Fiely, Jo Cohen, Melvin Visnick, and Ivy
Jacobs, OARM Financial Management Division; Ray Spears, Office of
General Counsel (OGC); Ross Coneally, Ellen Stough, Dodie steemland
and Rosemarie Pacheco, Department of Justice; and the Headquarters and
Regional staff who commented on the draft Manual.
Questions concerning this Manual or requests for additional copies
should be directed to:

            Chief, Program Development and Training Branch
            Office of Compliance Analysis and
            Program Operation
            Office of Enforcement and Compliance Monitoring
            U.S. Environmental Protection Agency
            401 M Street S.W.
            Washington, D.C. 20460

            U.S. EPA Mail Code LE-133

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                             INTRODUCTION


This Manual provides guidance to EPA enforcement staff on monitoring
and enforcing administrative and judicial orders.   The procedures
described in this Manual apply to all EPA statutes that provide
authority to issue administrative and judicial orders requiring
compliance with Agency requirements with the exception of the CERCLA
(Superfund) program.  The procedures set forth herein will supersede
general guidance in program case development manuals that address the
topics in this Manual.  Each program, however, may have more specific
guidance on monitoring and tracking orders that supplements this
manual.

The Manual focuses on the activities of Regional Offices in monitoring
and enforcing penalties since the majority of the cases are initiated
by the Regional programs.  Some Headquarters offices, such as the
Office of Toxic Substances, have national programs where enforcement
cases are initiated, concluded and settlements monitored by
Headquarters staff.  These Headquarters offices have program, legal,
administrative hearing clerk and financial management functions
comparable to the Regional structure described in this Manual.
Headquarters offices involved in monitoring and enforcing orders
should substitute their office functions for the comparable Regional
functions described and follow the guidance set forth in this Manual.

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                          Table of Contents

Chapter One - Monitoring and Reporting the Status of Final Orders

Final Administrative and Judicial Orders
Drafting Enforceable Orders
Monitoring Systems
Reporting Requirements
Additional Oversight Requirements for Administrative Orders
Additional Oversight Requirements for Judicial Orders
Appendices

Chapter Two - Collection of Administrative Penalties

Authority for Administrative Penalty Collection
Roles and Responsibilities
Financial Management Collection Procedures
Appendices

Chapter Three - Collection of Judicial Penalties

Payment Depositories
Responsibilities
Distributing Copies of Final Orders
Monitoring Penalty Payments
EPA Enforcement Reporting of the Status of Penalty Payments
Coordination of DOJ and EPA Accounts Receivable Reporting Systems
Pursuing Outstanding Penalty Debts
Compromising, Suspending or Terminating Judicial Penalty Debts
Appendices

Chapter Four - Enforcing Final Orders

Enforcing Administrative Orders
Enforcing Judicial Orders
  — Modifications
  — Stipulated Penalties
  — Motions to Enforce
  — Contractor Listing

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CHAPTER ONE

MONITORING AND REPORTING THE STATUS OF FINAL ORDERS


Final Administrative and Judicial Orders (Decrees)


This chapter provides general guidance on the roles and
responsibilities in monitoring (i.e. routinely checking) of
compliance with EPA administrative and judicial order require-
ments and reporting the status of the orders in Agency reporting
systems.  EPA National Program Managers may have additional
guidance for their program on monitoring and reporting that
supplements this general guidance.

Because EPA statutes vary on the type of administrative and
judicial authority available to address violations, program
specific guidance should be referred to for information on the
type and process for reaching a final administrative or judicial
order.   Once a final order has been issued, it must be monitored
until compliance with the terms of the order has been achieved.

In this chapter and for the remainder of the Manual, the term
"final order" refers to all types of orders including consent
orders and consent decrees issued or entered   as final under the
appropriate EPA administrative or judicial statutory authority.
In addition, this manual will use the term "violator"   to refer
to the party which must comply with an administrative or judicial
order.
   Judicial consent decrees are first "lodged" with the court and
   published by the DOJ in the Federal Register for public review
   and comment.  Unless challenged by the public, at the end of
   the 30-day review period the consent decree normally is entered
   as a final order (judgment) by the court  (See 28 C.F.R.
   50.7).2  Judicial enforcement actions refer to the violator as
   the "Defendant" and administrative actions refer to the
   violator as "Respondent".

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                                1-2

CHAPTER ONE	MONITORING FINAL ORDERS


Drafting Enforceable Orders	

Clarifying Acceptable Verifications of Compliance

Development of an effective post-litigation/settlement monitoring
program should begin at the time a settlement agreement and/or
when the order is drafted.  The final order must state the
required activity clearly and precisely.  Any work plans and
schedules referenced and appended to the orders must also be
clearly and precisely drafted with notice to the violator of what
constitutes acceptable verification of compliance with terms and
milestones.

Certification of Compliance

Where appropriate, a well-drafted agreement should include
provisions for self-monitoring and self-reporting by the violator
and instructions for penalty payments.  The "responsible corporate
or municipal officer" should be required to sign these self-
monitoring reports to ensure that high-level management attention
of the company or municipality is focused on complying with the
order.  Although such self-monitoring provisions do not obviate
the need for periodic post-settlement monitoring by the Agency,
they enable EPA to utilize its limited resources in a more
efficient manner.  see Appendix 1 of this chapter for guidance on
self-monitoring and verification requirements.

Stipulated Penalty Provisions

Stipulated penalty provisions can be included in final orders to
provide additional incentive for compliance.  These are penalties
agreed upon by the parties, at the time of entering into
settlement, as being payable in the event that the violator does
not comply with specified terms of the agreement.  Appendix 2
of this chapter provides guidance on the use of stipulated
penalties in EPA settlement agreements  (administrative or
judicial).  Chapters Two  (administrative) and Four (judicial)
discuss the procedures for collecting stipulated penalties.

Ensuring Penalties Are Not Tax Deductible

To ensure that violators do not treat penalties as a business
expense (i.e., pay to pollute), up-front and stipulated penalties
clauses in settlement orders should inform the violator that
penalties are not tax deductible.  Under a Memorandum of
Understanding with the IRS, EPA program offices and OE send to the
IRS quarterly data on the names of violators and the amounts of
penalties assessed.

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                                1-3

CHAPTER ONE	MONITORING FINAL ORDERS


Monitoring Systems	


To be effective, a post-litigation/settlement enforcement program
must be able to routinely track and identify violations of final
order requirements and quickly take action to address the
violations.  Tracking compliance with technical (non-penalty)
requirements of administrative and judicial orders is the
responsibility of the Regional Program Offices (RPOs).  Each
National Program Manager is responsible for establishing-
oversight mechanisms (reporting, annual program audits or special
management reviews) for ensuring that the RPOs have systems in
place for following through on administrative and judicial orders.
Each RPO is responsible for implementing, under its national
program guidance, a specific system for monitoring compliance with
the technical (non-penalty) requirements of judicial and
administrative orders.  Each RPO system should at a minimum
include three elements:  (1) an automated tracking system, (2)
regular supervisory review of the status of active orders, and (3)
maintenance of the case file.  These elements are described in
detail below.


Automated Tracking

An easily accessed automated data base is the first element of a
sound monitoring system.  To do this, three specific activities
must occur.  First, all judicial and administrative order
requirements are entered into the system.  Second, a "tickler
system" is established that alerts the user to the order
milestones due in each reporting period so that compliance can be
verified.  Third, the system must be routinely updated with
compliance information.

All technical (non-penalty) compliance schedules and reporting
requirements set forth in judicial decrees and administrative
orders must be entered into the system in order for it to be used
as a "tickler".  When all requirements and due dates are entered
into the system, the system should allow easy retrieval of
requirements and due dates.

Some programs have national automated data systems designed for
reporting national compliance information.  These systems provide
data fields for reporting compliance with technical and penalty
milestones.  These systems may or may not provide "tickler"
monitoring system capability.   Where national data bases are not
available, RPOs can develop their own personal computer (PC)

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                                1-4

CHAPTER ONE	MONITORING FINAL ORDERS


"tickler" system.  However, to minimize resources, PC "tickler"
programs for monitoring compliance also should be designed for
reporting purposes to provide the minimal national administrative
enforcement data requirements established by each program.

The National Enforcement Investigations Center (NEIC) has an
automated system that can be used as a tickler monitoring system
for judicial orders  (primarily consent decrees).  The NEIC system
can be used as a supplement to program office systems.   As of
October 1989, administrative orders can now be added and tracked
in the NEIC data base.  The Regional data clerks in the Office of
Regional Counsel can access this system from Regional terminals.
(See the ORC for more information on the services the NEIC system
can provide.)

Routine updating must be made a high priority for the automated
tracking system to be useful.  Most programs with national
automated data systems have requirements on the frequency of data
updates for reporting compliance status under the Strategic
Targeted Activities for Results System (STARS) and other
management accountability systems.  To obtain maximum
effectiveness in using these data bases as "tickler" monitoring
systems, RPOs should strive to update order milestones  no less
than quarterly, so that current information is available to
engineers, project managers and supervisors concerning  order
requirements.


Regular Supervisory Review of the Status of Active Orders

Regular supervisory review is the second element for
maintaining an effective monitoring system.  Supervisors should
routinely review the status of all cases with the engineer or
project manager.  This will help to ensure that all milestones set
forth in the judicial and administrative orders are being met in a
timely fashion and that office policy is being carried  out
effectively on discretionary issues.  Given the low visibility of
settled cases versus ongoing cases, it is essential that the
supervisor conduct this type of review on a regular
basis.
Maintenance of the Case File

The third element of an effective system for monitoring and
enforcing orders is the maintenance of the files.  Successful
enforcement of order violations often hinges on the establishment
of a "good paper trail", i.e., factual information that describes
the type of violation(s), the frequency of violations and the

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                                1-5

CHAPTER ONE	MONITORING FINAL ORDERS


actions EPA has taken to address the violations.  The file,
therefore, should contain all documentation of efforts to verify
compliance, such as routine company self-reporting and efforts to
address noncompliance, EPA contacts with the company, telephone
calls, meetings and letters.

Two important elements are necessary for ensuring the integrity of
the documentation in the case file.  First, each Region should
strive to maintain a complete and up-to-date official file.  (The
official file can be a separate RPO file, ORC file or a common
RPO-ORC file depending on the Region.)  All documentation
regarding compliance with order requirements should be in the
designated official file.

Second, one person should be responsible for ensuring that all
pertinent documents are  in the official case file.  This will
ensure that all incoming documents are added to the file and that
when a case file has been borrowed that all documents are still in
the file when it is returned.  Standard borrowing procedures allow
only office personnel to remove the file.  Monitoring "checked
out" files is usually initiated by requiring borrowers to turn in
a "check out slip" for all materials leaving the file room or fi'le
storage area.  Supervisory oversight and routine file reviews
should be utilized to ensure all pertinent documents are in the
official file and that the integrity of the case file is
subsequently maintained.  Also, case files should not be archived
until full compliance with any order has been verified.
Retxirtina Reauirements
For reporting  (not monitoring) purposes, RPO automated data
systems should maintain a data field for recording penalty
payments.  While RPOs are not responsible for monitoring and
collecting penalties, RPOs are responsible for verifying that all
penalties, including assessed stipulated penalties   , have been
   Stipulated penalties are considered "assessed" and should be
   entered into the RPO data base when the responsible EPA
   (administrative) or DOJ  (judicial) official sends the violator
   a "bill for stipulated penalties".  See Chapter Two
   (administrative penalties) and Chapter three  (judicial
   penalties) for additional guidance.

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                                1-6

CHAPTER ONE	MONITORING FINAL ORDERS


paid before terminating or closing out a judicial and
administrative order, or reporting the violator as "in compliance"
in its data systems.  RPO data systems should provide the amount
of penalty assessed and a "yes or no" field on whether penalties
have been paid.

Chapter Two of this manual describes the procedure for collecting
administrative penalties through the financial management offices
of EPA.  The Integrated Financial Management System (IFMS)
(automated data base) will provide the numerical data on the
status of each penalty debt and the total amount of penalties
collected.  Chapter Three describes the monitoring and collection
of judicial penalties by DOJ and the reporting of penalty
collection information to the IFMS.
Additional Oversight Requirements for Administrative Orders	

[Note:  Based on a recommendation of the Enforcement Management
Council, an OE work group is currently developing a set of minimum
data requirements that each national program manager should
maintain on administrative enforcement actions from initiation to
compliance with all final order requirements.  This manual will be
revised to include those requirements when they become final.]

Some program offices such as the OPTS-Office of Compliance
Monitoring require the Regional Offices to submit final civil
administrative orders to Headquarters for inclusion on a central
listing, so that a history of nationwide non-compliance can be
documented.
Additional Oversight Requirements For Judicial Orders (Consent
Decrees)
Judicial Consent Decree Tracking and Follow-up Directive

This Directive contained in Appendix 3 of this chapter outlines
the basic requirements for effective management of Agency consent
decree tracking and follow-up responsibilities and supplements
this manual's guidance.

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                                1-7

CHAPTER ONE	.	MONITORING FINAL ORDERS


STARS Consent Decree Tracking Measure

Under the STARS consent decree tracking measure, each Region is
responsible for quarterly reporting of compliance status of its
active judicial orders to OE.  See the Directives in Appendix 3 of
this chapter.

NEIC Central Repository

Under EPA guidance issued on December 20, 1983, each Region must
send to the National Enforcement Investigations Center (NEIC) -
Lakewood, CO, a copy of all judicial orders to which EPA is a
party.  This includes State court orders where EPA is a party.
All subsequent modifications of judicial orders approved by a
court also must be forwarded.  The ORC is responsible for sending
judicial orders to NEIC unless the Region has officially
designated the Regional Program Office as the responsible office.

The NEIC maintains a central (hard copy) repository for all EPA
judicial orders and an automated management information system
that stores summaries of each decree.  It is essential that the
EPA have «L complete file on all orders.  EPA's enforcement program
is decentralized and defendants can use that to their advantage in
negotiating settlements with EPA Regions.  The NEIC Central
Repository enables the Agency to exchange information across
Regions on the scope and type of language provided in orders.  For
example, a defendant may assert that EPA has provided a certain
type of relief for a similarly-situated company in another Region.
The NEIC repository provides a tool for enforcement staff to
verify that assertion and to determine the context for that
provision.   (Obviously, use of a provision in one case does not
necessarily make it appropriate in a different case.)

The NEIC data analyst who maintains the OE Docket in each Office
of Regional Counsel (ORC) can access the NEIC data base for
judicial order information.  Regions also can use the NEIC
automated system as a "tickler" system and as a means of reporting
the compliance status of judicial orders under the STARS consent
decree tracking measure mentioned above.

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                            i-Ai-1
  f ~ > -4 .
* ^v  *
ISK;
        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
-t    .^                 WASHINGTON. DC. 20460
                             JUL 25
                                                      COMPUANCt

  MEMORANDUM
  SUBJFCT:  Guidance on certification of Compliance with
            Enforcement Agreements
                                                        \
   FPOM:     Thomas L.  Adams,  Jr.    ^W   »*• *\. *>•• •
             Assistant  Administrator for  Enforcement
               and Compliance  Monitoring

   TO:       Assistant  Administrators
             Reaional Administrators
             Regional Counsels


   I.    BACKGROUND

        Over the past several  years, EPA  has initiated  record
   numbers of civil judicial and administrative enforcement actions.
   The vast majority of such actions have been  resolved by  judicial
   consent decree or administrative consent  order.

        The terms of many of these settlements  require  the  violator
   to oerform specific  tasks necessary  to return to  or  demonstrate
   comoliance, to accomplish specific environmental  cleanup or other
   remedial steps, and  to take prescribed environmentally beneficial
   action.

        Settlement agreements  typically specify that the violator
   perform certain required activities  and thereafter report their
   accomolishment to EPA.  Verification that the required activities
   have actually been accomplished is an  essential element  in tne
   overall success of the Agency's enforcement  program.

   II.  POUPOiE

        The focus of this advisorv guidance  is  on verification of
   compliance with settlement  agreements  whicn  require  specific
   performance to achieve or maintain compliance with a regulatory
   standard.  EPA has onaoing  responsibility for ensuring that
   settling parties are in compliance with the  terms of their
   negotiated agreements.  To  this end, the  Agency may  require
   that a responsible official (as that term is defined herein)
   oersonally attest to the accuracy of information  contained in
   comoliance documents made available  to EPA pursuant  to the
   terms of a settlement agreement.

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                               -2-
      The inspection programs of EPA and other federal regulatory
 agencies art based of necessity on the concept that a limited
 number of regulated facilities will be inspected each year.
 Conversely, this means tnat a large number of regulated parties
 can operate for extended periods of time without being the
 suoject of an on-site inspection by EPA staff.   Hence, it is
 crucial to ensure that all reguired compliance reports are
 received trom the regulated facility in a  timely manner.   In
 addition—and eoually as important—timely review of such
 reports must be undertaken by EPA  to ensure that  the reports
 are adeouate under the terms of  the settlement agreement.

      EPA experience shows  tnat the majority of regulated  parties
 make oood faith efforts  to comply  with  their responsibilities
 under  the environmental  laws and regulations.  Nevertheless, the
 Aoency must  have effective monitoring procedures  to  detect
 instances of noncompliance with a  settlement agreement.   A  vital
 component of these procedures will be to ensure that  the  environ-
 mental  results  obtained  in the enforcement  action are  indeed
 achieved and that  criminal sanctions, where appropriate,  are
 available to respond  to  instances  of intentional misrepresentation
 or  fraud committed by  such violators.

     EPA  will ensure that  all responsible officials entering
 into settlement  agreements with the Agency  are held accountable
 for  their subseauent actions  and the actions  of any subordinates
 responsible  for  the  information contained in  compliance reports
 submitted to  the Agency.


 III. GUIDANCE

     A.   certification bv  Responsible Corporate Official

     The  terms of  settlement agreements, as well as any certifi-
cation  language  in subsequent reports to the Agency, should
be drafted in a manner to  trigger  the sanctions of 18 0.S.C.
<1001,_1/ in  the event that  false  information is knowingly and
willfully submitted to EPA.  Submission of  such false information
 I/united States Code, Title 18, Section 1001 provides:

          "Whoever, in any matter within the jurisdiction
     of any department or agency of the United states know-
     ingly and willfully falsifies, conceals or covers up
     by trick, scheme, or device a material fact, or makes
     any false, fictitious or fraudulent statements or
     representations, or makes or uses any false writing
     or document knowing the same to contain any false,
     fictitious or fraudulent statement or entry, shall be

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                              -3-
mav also expose the defendant(s)  in  judicial consent  decree
falsification, incidents to both civil and criminal  contempt
proceedings.

     This provision of law is a key  sanction within the  federal
criminal code for discouraging any person trom intentionally
deceivina or misleading the United States government.

         1.  signatories to Peports

     Settlement aareements should specify that all future reports
by the settling party to the Agency, which purport to document
compliance with the terms of any agreement,'shall be signed by
a responsible official.  The term "responsible official" means
as follows:.2/

             a.  For a corporation;  a responsible corporate
officer.  A responsible corporate officer means:   (a) A president,
secretary, treasurer or vice-president of the corporation in
charge of a principal business function, or  any other person who
performs similar policy- or decision-making functions for the
corporation, or (b) the manager of one or more manufacturing,
production, or operating facilities employing more than 250
persons or having gross annual sales or expenditures exceeding
S35 million (in 1987 dollars when the Consumer Price Index was
345.3), if authority to sign documents has been assigned or
delegated to the manager in accordance with  corporate procedures.

             b.  For a partnership or sole proprietorship;  a
general partner or the proprietor, respectively.

         2.  when to Reouire a Certification  statement

     The reauirement for an attestation by a  responsible
official is always useful as a matter of sound regulatory
management practice.  Such a requirement is  more  urgent,
(Note 1, cont'd)

     fined not more than $10,000 or imprisoned not more than
     five years, or both."

There are four basic elements to a Section 1001 offense: (1) a
statement; (2) falsity; (3) the talse statement be made "know-
ingly and willfully"; and (4) the false statement be made in a
"matter within the jurisdiction of any department or agency of
the united states".  United states v. Marchisio. 344 P.2d 653,
666 (2d Cir. 1965).

 2/ For NPDES matters, the definitions of "responsible official"
and "certification", as set fortn in 40 CFR 5122.22, may oe used
as alternative language to this guidance.

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                              -4-
 nowever,  where  a  regulated party has a history of noncompiiance
 or  where  prior  violations place one's veracity into question.  3
          3.   Terms  of  a  Certification  statement

      An  example  of  an  appropriate  certification  statement  for
 inclusion  in  reports submitted  to  the  Agency  by  regulated  parties
 who  are  signatory to a settlement  agreement is as  follows:


               "I certify that  tne information contained
           in or accompanying this (submission)  (document)
           is true, accurate,* and complete.

              "As to (the) (those) identified portion(s)
           of this  (submission) (document) for which I
           cannot personally verify (its) (their) truth
           and accuracy, I certify as the company official
           havina supervisory responsibility for the
           person(s) who, acting under my direct instructions,
           made the verification, that* this information is
           true,  accurate, and complete." */


     B.  Documentation to Verify Compliance

     Typical settlement agreements require specific steps to
be undertaken by  the violator.  As EPA statf members engage in
settlement negotiations and the drafting of settlement documents,
they should identify that documentation which  constitutes tne
 3/  while personal liability is desirable to promote compliance,
it should be noted that corporations may be convicted under 18
U.S.C.  S1001 as well.  A corporation may be held criminally
responsible for the criminal acts ot its employees, even if the
actions of the employees were against corporate policy or express
instruction*.  See U.S. v. Automated Medical Laboratories, 770
P.2d 339 (4th Cir. 1985); U.S. v. Richmond. 700 P.2d 1183 (8th
Cir. 1983).  Moreover, both a corporation and its agents may
be convicted for the same offense.  See U.S. v. Basic construc-
tion CO., 711 P.2d 570 (4th Cir. 1983).

 4/  It is inevitable that in negotiating consent agreements,
counsel for respondents will seek to insert language in the
certification statement as to the truth of the submissions to be
to the "best information" or to the "fullest understanding- or
"belief" of the certifier.  Such qualifiers should not be
incorporated, since the provisions of 18 U.S.C. S1001 provide
for prosecution for making false statements knowingly and
willfully—not for forming erroneous beliefs, etc.

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                             -5-
most useful evidence that the action  required has actually been
undertaken.  The most useful evidence would be that  information
or documentation that best and most easily allows tne Agency
to verify comoliance with the terms (including milestones) of
a settlement agreement.  Examples of documentation to suostantiate
compliance include, but are not limited to, invoices, work
orders, disposal records, and receipts or manifests.

     Attachment A is a suggested type of checklist that can be
developed tor use within each program area._5/  The checklist
includes examples ot specific documentary evidence which can oe
required to substantiate that prescribed actions have, in fact,
been undertaken.

IV.  SUMMARY

     This Guidance is to orovide assistance to EPA employees
wno negotiate and aratt settlement documents.   It is appropriate
when circumstances so dictate that such documents contain
sufficient certification language for ensuring,  to tne maximum
extent possible, that all reports made to EPA, pursuant to the
terms of any settlement agreement, are true, accurate, and
complete, and that such reports are attested to by a responsible
official.

     The Agency must incorporate within its overall regulatory
framework all reasonable means for assuring compliance by tne
regulated community.  The inclusion of compliance certification
language, supported by precise documentation requirements, in
neaotiated settlement agreements may,  in appropriate instances,
mean tne difference between full compliance with both the
letter and the spirit of the law, and something less than full
compliance.  In the case of the latter, the violating party
is then subject to the sanctions of the federal  criminal code.
Attachment A
 5/ EPA or a State may be unable to confirm the accuracy of
certification* for an extended period of time.  Therefore,
it is suggested that, whenever certification by a respondent/
defendant is reauired, the order/decree provide that "back-up"
documentation--sucn as laboratory notes and materials of the
tvpes listed in the examples in the text above—be retained for
an appropriate period of time, sucn as three years.   See, tor
example,,the 3 year retention time in 40 CPR S122.4Kj) (2).

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                                     MEANS OP CERTIFYING COMPLIANCE
                                         WITH CONSENT AGREEMENTS
                                               (examples)
      Action Required By
      Consent Agreement
       Violator's otficial
       Certifies That:
     Documents Accompanying
     Certification:
 •Purchase pollution control
     equipment.

 •Installation

 *Onqoina operation and Main-
    tenance
 •Meet discharge levels


 •Labeled transformers

 •DO risk study

 •Hire employees
  •Use complying coatings

 •Train employees (e.g.,  work
    practices)
 •Set up environmental  auditing
    unit
 •Equipment purchased


 •Equipment installed and  tested

 •Operating as required



 •Discharge levels have been met


 •Transformers have been labeled

 •Study has been completed

 •Employees have been hired
 •Verifying complying coatings
    are used
 •Employee training has been
    completed
 •Unit has been established
 (•Orientation and instruction
 |   completed
J	
 •Invoice
 •invoice for work with photograph

 •Continuous monitoring tape
 •Periodic sample results
(•Maintenance of records
I
(•Continuous monitoring tapes
(•Periodic sample results

 •Photographs

 •Study report and recommendations

j•Personnel records
(•Position descriptions
(•Entry on duty dates
(•Salary data
I
(•Documents to verify VDC content

(•Educational materials and record
    of employee attendance at
    training session
 •Same as above re:   personnel
 •Charter of  audit group
(continue*! on next  page)
                                         ATPAOIMf-'NT

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  (continued tram previous paqe)
                                     MEANS OP CERTIFYING COMPLIANCE
                                         WITH CONSENT AGREEMENTS
                                               (Examples)
      Action Required By
      Consent
 |      Violator's Official
J	Certifies That:
(•Dispose of PCBs
 I
 |*PCBs disposed of in lawful
 I   Manner
|*Replace PCB transformers
 •Reaister pesticide certifi-
    cation of applicator

j'Remove cancelled product froR
    the market
 *New transformers installed
 •Applicator certification has
    been accomplished

 ('Removal has been accomplished
 •comply with asbestos removal
    and disposal regulations
(•Monitor waste stream
j'Sludge removal
 (•Haste stream has been properly  (•Discharge Monitoring Report
 1   monitored                     j

 •Sludge removed by milestone
    deadline
 •Conduct qroundwater monitoring j'Groundwater monitoring accom-
 'Collect  and analyze soil
    samples

 •Homovi- ron I .iml naf od soils  and
    flisnor.*- of in compliance
    with RCRA
 •Compliance with asbestos removal
    and disposal regulations on
    a job-by-job basis
     Documents Accompanying
     Certification:
 •Copies of manifests
 •Copies of purchase and Instal-
    lation receipts

 •Copies of certificates
j'Copies of correspondance with
    customers and documentation
    of removal
 •Copies of customer lists for
    independent verification by
    EPA and states

 •List of locations of all jobs
    plished in appropriate manner

 •Soil samples collected and
    analyzed in specified manner  j
                                  I
 'Contaminated r~Ms removed and
    disposed of    compliance
    with RCRA
 •Copies of  invoices on sludge
j    removal

 •2/A (quality analysis) tests;
    certification by laboratory
 •Same as above
 •Copies of contract  documents
   and manifests

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 CHAPTER CN'E                 1-A2-1
   *        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OSB

  V                     WASHINGTON, D.C. 20460

                             M 2 4 1990
                                                       OFFICE OF ENFORCEMENT

                                                         AND COMPLIANCE
                                                          MONITORING
MEMORANDUM

SUBJECT:  Use of Stipulated Penalties in EPA Settlement
          Agreements
FROM:     James M. Strocl     ^
          Assistant Administrator

TO:       Addressees
     This memorandum provides guidance on the use of
stipulated penalties in settlement of enforcement actions.
For each issue discussed, a preferred approach is stated
along with its rationale.  These preferred approaches should
be followed absent unusual circumstances dictating an alter-
native approach.  The guidance applies to judicial settle-
ments except that it does not supersede the September 21,
1987 Guidance on the Use of Stipulated Penalties in Hazardous
Waste Consent Decrees.  It also applies to administrative
cases where EPA has legal authority to assess stipulated
penalties.

     Stipulated penalties are penalties agreed to by the
parties to a settlement agreement for violation of the agree-
ment's provisions.  These penalties are then made a part of
the agreement, and are enforceable if it is violated.  In EPA
settlement agreements, the primary goal of a stipulated
penalty is to act as an effective deterrent to violating the
settlement agreement.

     I.   Tvrxg of Requirements to Which Stipulated Penalties
          Should Apply

     Any clearly definable event in a settlement agreement
may be appropriate for stipulated penalties in a given case.
Such events include testing and reporting requirements,
interim and final milestones in compliance schedules, and
final demonstration of compliance.  The government litigation
team assigned to a case should carefully consider which

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                                -2-
 consent agreement provisions are appropriate for stipulated
 penalties and be prepared to vigorously enforce them.   Stipu-
 lated penalties can even be attached to consent agreement
 provisions requiring payment of  up-front penalties so  long as
 the  stipulated penalties are higher than the interest,
 computed at the statutory interest  rate,  on the underlying
 amount.   Every consent  agreement requirement to which  stipu-
 lated penalties are attached should be  drafted  to ensure  that
 the  standards for determining compliance  are clear and  objec-
 tive,  and that any information required to  be submitted to
 EPA  is clear and unequivocal.

      In general,  stipulated penalties are particularly  impor-
 tant for requirements of the consent agreement  which do not
 represent regulatory or  statutory violations for  which  the
 agency could potentially get statutory  maximum  penalties.
 Such provisions may include a requirement to install specific
 control  equipment where  the regulations and statute involved
 require  only compliance  with a discharge  or emissions stan-
 dard,  or environmental auditing  or management requirements
 designed to  ensure future compliance.   Without  stipulated
 penalty  provisions,  penalties for violation of  such provi-
 sions  in judicial cases  are only available  at the  judge's
 discretion in a contempt action  under the court's  inherent
 authority to enforce its own order.

     Attaching stipulated penalties to  violations of consent
 agreement provisions which  are also violations  of a statute
 or regulation with a specified statutory  maximum penalty has
 advantages and disadvantages which Agency attorneys should
 consider  carefully in the context of a  particular case.  The
 advantage  is  ease  of enforcement.  The Agency can pursue
violations without having to bring a new  enforcement action
or,  in the judicial  context, a contempt action.  The disad-
vantage is where  stipulated penalties for such violations are
set at less than the statutory maximum, parties may argue
that the government has  bargained away  some  of  its
enforcement discretion.

     If a particularly egregious statutory or regulatory
violation occurs  for which  the government feels the applic-
 able stipulated penalties are not adequate,  sources may claim
the  government is  equitably estopped from pursuing other
 enforcement  responses.   Sources may argue in the context of a
contempt  action or new enforcement action that the govern-
ment has  already  conceded in the consent  agreement that a
 fair penalty  for this type  of violation is the  stipulated
penalty, and  therefore,  the court should  not require any

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                               -3-
additional penalty.  Sources nay make this argument  even  if
the government has reserved all rights to pursue various
enforcement responses for consent agreement violations.1

     II. Level of stipulated Penalties

     Because the statutes EPA is charged with enforcing vary
so widely, penalty schedules for all media or types  of viola-
tions are not practical.  There are, however, several impor-
tant criteria which should always be considered in setting
stipulated penalty amounts.  Each program office, in concert
with the appropriate OECM Associate Enforcement Counsel, may
want to consider providing further, more specific guidance on
appropriate levels or ranges for stipulated penalties based
on the criteria below.

     One key element which applies to setting the levels of
all stipulated penalties for violation of a consent  agreement
provision is that the defendant is by definition a repeat
offender when the provision is violated.  For this reason,
such stipulated penalties should be higher on a per  day basis
than the initial civil penalties imposed.  See Guidelines for
Enforcing Federal District Court Orders in Environmental
Cases (GM-27).

     The economic benefit accruing to a source due to a
violation should be recovered in order for the stipulated
penalty to be an effective deterrent.  For some types of
violations, such as notice provisions, the economic benefit
of noncompliance may be minimal, though significant  stipu-
lated penalties may be appropriate based on other criteria as
discussed below.  For these types of violations, no  formal
BEN analysis is necessary.  For violation of provisions which
involve quantifiable delayed or avoided costs, such as
installation of control equipment as part of a compliance
schedule, the minimum stipulated penalty should be the
economic benefit of noncompliance.  However, the recidivism
factor will nearly always justify a penalty well above this
minimum, which often serves as the point of departure for a
minimum initial penalty.

     The source's ability to pay can be another important
criterion to consider.  How much of a deterrent a stipulated
penalty is will depend on how financially significant it is
to the source.  The same stipulated penalty may be
     1  In  considering whether  to  attach  penalties  to violations
uncovered by an environmental audit, the November 14,  1986 Final
EPA Policy on the Inclusion of Environmental Auditing Provisions
in Enforcement Settlements (GM-52) should be consulted.

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                                -4-


 financially crippling to one source,  while merely a routine
 business  expense for another.   However,  the burden is always
 on the defendant to raise such issues during negotiations and
 to justify lower stipulated  penalties than the government has
 proposed.   Financial ability to pay a penalty can be
 determined using the ABEL computer program for corporate
 violators  and the MABEL  computer program for municipal
 violators.

     It should be emphasized that this factor should not  be
 considered a reason for  lowering the  level  of stipulated
 penalties  below  the level  equal  to the economic benefit.   It
 would  mainly affect the  degree to which  this base minimum
 amount is  increased to account for the recidivist nature  of
 the violation.   The key  concern  is that  stipulated penalties
 should be  set at levels  which  are significant enough to deter
 violations  rather than resulting in a  "pay-to-pollute"
 scheme.

     Another criterion which should be considered in setting
 stipulated  penalty  amounts is  the gravity of  the violation,
 i.e..  how critical  is the requirement  to the  overall
 regulatory  scheme and how environmentally significant is  the
 violation.   The  environmental  significance factor should
 include consideration of potential  and actual harm to human
 health and  the environment.  In general, consent agreement
 provisions  which are central to a particular  regulatory
 scheme should have  higher stipulated penalties than
 provisions  that  are considered less significant.  It is up to
 each enforcement program to make  judgments about the relative
 importance  of respective requirements.  As previously noted,
 some consent agreement requirements such as notice provisions
may have little  or  no associated  economic benefit, but may
nevertheless be  critical to the regulatory program in
question and would warrant high stipulated penalties.

     Another consideration related to  the gravity component
 is the source's  history of compliance.  If the source has a
 record of previous  violations, a  higher stipulated penalty
may be neceuary because earlier  enforcement  responses were
 ineffective in deterring subsequent violations.

     Another option to consider whenever setting stipulated
 penalty levels is an escalating schedule, in which the
 stipulated penalty  increases with the  length  of the
violation.  For  example, violations of up to  two weeks might
 have stipulated  penalties of $1000 per day while violations
 of two to four weeks might have stipulated penalties of $2000
 per day, and so  on.

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                               -5-
     III. Method Qf collection

     Settlement agreements should state the method by which
stipulated penalties will be collected.  Two options are for
the settlement agreement to provide that the penalty is
automatically due upon the occurrence or non-occurrence of a
specified event, or it may make the penalty payable only on
demand by the government.

     Automatic payment is the preferred approach.  It saves
resources which would otherwise be devoted to making demands
for payment and may put the government in a more advantageous
position should the source declare bankruptcy.  If payment is
made on demand, the consent agreement should make it clear
that the legal liability of the source for the stipulated
penalty attaches immediately upon violation, and it is only
payment of the penalty to the Agency which is not due until
demand is made.

     Settlement agreements should always state where and how
the penalty should be paid and how the check should be draft-
ed.  Sfifi EPA Manual on Monitoring and Enforcing Administra-
tive and Judicial Orders for additional guidance.  In
addition, settlement agreements should not agree to pre-
enforcement review of accrued stipulated penalties.

     IV.  Timing of Enforcement Responses

     Prompt action to collect stipulated penalties due under
any consent agreement is crucial.  If stipulated penalties
are due on demand, it is very important such demands be
timely.  The government encounters significant difficulty
collecting stipulated penalties if it sits on its rights.
Delay allows penalties to increase to levels parties may
argue are inequitable.  Sources nay also raise equitable
defenses such as laches or estoppel, arguing that the govern-
ment cannot fail to exercise its rights for extended periods
of time allowing stipulated penalties to continue to accrue
and then move to collect unreasonably high penalties.  The
government, of course, can and should always rebut such
claims by arguing it is simply enforcing the decree or agree-
ment as agreed to by defendant, and is not subject to such
equitable defenses.  However, this unnecessary complication
should be avoided.

     A cap on the amount of stipulated penalties which can
accrue is generally not a preferred solution to this problem.
The stipulated penalty would lose its deterrent value once
the cap is reached.  Also, the main goal of any enforcement
action must be compliance with the law so that public health
and welfare is protected.   If consent agreement provisions

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                                -6-


 are  allowed to be  violated long enough for a cap to be reach-
 ed,  serious environmental  consequences may have occurred.

      Providing that  stipulated  penalties  only apply for a
 specific,  reasonably short period  of time in conjunction with
 reserving  to the government all available enforcement  respon-
 ses  for violation  of the consent agreement,  however, solves
 many of the problems mentioned  above.   By its own terms,
 stipulated penalties will  not accrue to levels defendants can
 argue are  inequitable.  The government will  be in a strong
 position when  it pursues other  enforcement options, such as
 contempt actions or  a new  enforcement  action to get
 additional  penalties, because it can argue that the penalties
 in the original consent agreement  were not enough to deter
 the  defendant  from further violations  and  the  possibility of
 additional  penalties was clearly contemplated.

      V.  Reservation of Rights

      All consent agreements must contain a provision which
 reserves to  the government the  right to pursue  any legally
 available enforcement response  for violation of any consent
 agreement provision.  These enforcement responses would
 include civil contempt proceedings and injunctive relief, and
 criminal contempt  proceedings for  particularly  egregious
 violations.  However, for  provisions mandated by statute or
 regulation and which have  stipulated penalties  attached, a
 reservation  to pursue statutory  penalties  is suggested but
 not required.  For model language, see the October 19,  1983
Guidance for Drafting Judicial Consent Decrees  (GM-17).

     VI.  Collection  of Stipulated Penalties

     The government  should be prepared to collect the full
amount of stipulated  penalties due under a consent agreement.
No agreement should  ever anticipate compromise by specifying
 instances where it will be allowed, aside from a standard
 force majeure clause.  In rare, unforeseeable circumstances,
however, the equities of a case may indicate that the govern-
ment may compromise the amount  it  agrees to collect.  For
penalties payable on  demand, the government may also exercise
 prosecutorial discretion by declining to proffer a demand for
 stipulated penalties  for minor violations of a consent agree-
ment.

      It may  also be  appropriate to provide that stipulated
penalties for violation of  interim milestones  in a compliance
 schedule will be forgiven  if the final deadline for achieving
compliance is met.   This is clearly inappropriate where there
 is significant environmental harm  caused by the defendant
missing the  interim  deadlines.   If such a  provision is used,

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                               -7-
the defendant should generally be required to place accrued
penalties in an escrow account until compliance by the final
deadline is achieved.

     In judicial cases, the Attorney General and his
delegatees in the Department of Justice  (DOJ) have plenary
prosecutorial discretion to compromise stipulated penalties.
This authority stems from 25 U.S.C. § 516, which reserves to
DOJ authority to conduct the litigation of the United States,
including cases in which an agency of the United States is a
party, and the cases and regulations broadly interpreting
this authority.

     In administrative cases handled solely by EPA,
stipulated penalties should be collected pursuant to the
enforcement authority granted to EPA under the statute gover-
ning the case.  This authority to collect and compromise
stipulated penalties varies from statute to statute.

     Separate from the process for collecting stipulated
penalties, EPA must keep track of money owed the federal
government (accounts receivable) resulting out of the acti-
vities of the Agency, including administrative penalty
assessments.  A stipulated penalty becomes an account receiv-
able when the appropriate Agency official determines that a
violation of a consent agreement provision with an attached
penalty has occurred.  Under Agency financial regulations and
policies for monitoring accounts receivable, stipulated
penalties due and owing must be reported within three days to
the Regional Financial Management Office (FNO).  The FNO is
responsible for entering the stipulated penalty as an
accounts receivable into the Agency's Integrated Financial
Management System (IFMS).  The "appropriate agency official"
who determines the existence of a stipulated penalty account
receivable is responsible for keeping the FMO updated on the
status of enforcement penalty collection efforts.  A more
detailed account of these procedures is included in the
Manual on Monitoring and Enforcing Administrative and Judi-
cial Orders.
Addressees:

     Regional Administrators
     Regions I-X

     Deputy Regional Administrators
     Regions I-X

     Regional Counsels
     Regions I-X

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                          -8-
E. Donald Elliott
General Counsel
Headquarters Compliance Program Divisions Directors
Mary T. Smith, Acting Director
Field Operations and Support Division
Office of Mobile Sources
David Buente, Chief
Environmental Enforcement Section
U.S. Department of Justice
Associate Enforcement Counsels
Workgroup Members

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                               1-A3-1                   APPENDIX  3


       UNITED or^ES t-\virtGNME:\TAl r-F.OTECTION AGENCY
                         VVASHUViGTOiY 0 C 2-:-460

                               JAN I  I  1990
MEMORANDUM

SUBJECT:  Agency Judicial Consent Decree Tracking and Follow-up Directive
                            .^-~^~ \s**
FROM:     James M. StrccTf^ /*L^>
           Assistant Administrator

TO:        Assistant Administrators
           Regional Administrators, I-X
     This memorandum transmits the Agency Judicial Consent Decree Tracking
and Follow-up Directive. The Directive specifies Agency requirements for how EPA
Regional Offices track compliance with judicial consent decree requirements and for
how Regions select and document decisions on appropriate Agency follow-up
responses to consent decree violations (for the purposes of this Directive, the use of
the term "consent decree" also includes judicially imposed court orders). Each
Region should develop and execute a plan to implement this Directive so that all
elements will be in place by April 30,1990. By no later than May 30, each Region
should submit to me a memorandum detailing the steps  they have taken to
implement the Directive. In addition, we intend to review its implementation
during this year's audits of the Offices of Regional Counsel.

     The Directive was developed after an extensive review of current Agency
requirements and practices conducted, over the last nine months, in consultation
with the Enforcement Management Council and the Enforcement Office Directors.
We appreciate the efforts of the Regional and Headquarters offices, which made
significant contributions to the study and to the development of the requirements
outlined in this Directive. The resultant Directive outlines the basic requirements
that are necessary  to effectively manage our consent decree tracking and follow-up
responsibilities and should be used as a supplement to the Agency "Manual on
Monitoring and Enforcing Administrative and Judicial Orders", which OECM will
soon be publishing.

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                                     -2-
      There are a few requirements from the Directive that I would like to highlight.
The Directive emphasizes the need for adequate documentation of each violation
and the selection of the Agency's enforcement response in response to a violation.
The documentation requirement is handled through the use of a form which has
been kept basic so as to not cause a resource drain on Regional resources. The
Directive also lays out a requirement for database management but provides each
Region with maximum flexibility on selecting the appropriate method of
maintaining its database based on its caseload and computer capabilities.  Finally, the
Directive requires that the Regional Program Division and the Office of Regional
Counsel jointly select the Agency response to a consent decree violation, with the
decision made at the Branch Chief or higher level in keeping with the seriousness
associated with consent decree violations.

      Fulfilling the requirements of the Directive should allow us to successfully
address the increasing workload associated with the growing number of judicial
consent decrees. We will soon be discussing with the Headquarters Enforcement
Office Directors the appropriateness of applying elements of these judicial Directive
requirements to at least some classes of administrative enforcement orders.

      Each Region currently reports quarterly on the status of each active consent
decree as part of the Agency's STARS system.  OECM would like to move to
oversight of Regional consent decree tracking and follow-up implementation
through our existing Regional audits, rather than through the STARS system. We
will assess the Regions' success in implementing this Directive with the goal of
dropping this activity as a STARS reporting measure in FY1992. We will also be
working with the Headquarters Enforcement Office Directors to include consent
decree tracking and follow-up activity in their Regional audit programs. As we
move to drop the STARS reporting requirements, Regions must assure that their
consent decree tracking systems have the capacity to provide timely information or
reports on the compliance status of their consent decrees to respond to information
requests that might occasionally be made by Agency management or in response to
outside inquiries.

-------
                                    -3-
     OECM is available to provide assistance to you in implementing this Directive.
Rick Duffy, Chief of the Compliance Evaluation Branch, or Bill Watt of his staff are
available to assist the Regions on the technical and management requirements and
can be reached at 382-3130. Regions interested in exploring the option of using the
consent decree tracking database management system developed by the National
Enforcement Investigation Center (the NEIC-CDETS) should contact Rob Laidlaw at
776-3210.

Attachment

cc   Headquarters Enforcement Office Directors
     Deputy Regional Administrators, I-X
     Regional Counsels, I-X
     Associate Enforcement Counsels
     Acting Director, NEIC
     Regional Program Division Directors, I-X

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Judicial Consent Decree Tracking
    and Follow-up Directive

           January 1990
              JSB)
  Office of Enforcement and Compliance Monitoring
    U.S. Environmental Protection Agency

-------
                                   Judicial Consent Decree Tracking Directive
                                Questions concerning this Directive or requests
                                    for additional copies can be directed to:

                                  Chief, Compliance Evaluation Branch
                           Office of Compliance Analysis and Program Operations
                             Office of Enforcement and Compliance Monitoring
                               U.S. Environmental Protection Agency

                                          401 M Street S.W.
                                        Washington, D.C. 20460
                                           (202 - 382-3130)

                                      U.S. EPA Mail Code LE-133


OECM-EPA                                 •                                                   January 1990 !

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                            Judicial Consent Decree Tracking Directive
        JUDICIAL CONSENT DECREE TRACKING AND FOLLOW-UP DIRECTIVE

     PURPOSE

          This directive is provided to clarify and supplement existing Agency
     requirements and guidance for judicial consent decree tracking and follow-up.
     Agency managers responsible for consent decree tracking and follow-up activities
     must implement the requirements of this directive. Managers are also responsible
     for fulfilling any additional requirements for consent decree tracking and follow-up
     that are issued by National Program Managers.  This Directive is effective April 30,
     1990.  For purposes of this Directive, the term "consent decree" includes judicially
     imposed court orders.

         This directive prescribes judicial consent decree tracking and follow-up
     requirements for the following areas:

          1. Implementing the Agency Guidance on Certification of Compliance with
           Enforcement Agreements
         2. Regional consent decree tracking and follow-up database management
         3. File documentation of consent decree violations
         4. Decisions on Agency follow-up to violations
           A. Responsibility for decision
           B. General criteria for making follow-up decisions
           C. File documentation of follow-up decisions
          5. Maintaining data on the current status of EPA consent decrees
          6. Termination of consent decrees and closing cases

     BACKGROUND

     Consent Decree Tracking Responsibilities:

          Consent decree tracking and follow-up is conducted by each Regional Office
     under the direction of the Regional Administrator. Within each Region, most
     responsibilities are shared between the Office of Regional Counsel (ORC) and the
     Regional Divisions responsible for program compliance activity. Generally, the
     responsibilities are divided within each Region as follows:

     Regional Program Divisions

          Regional Program Divisions are responsible for the overall management and
     direction of the Regional compliance program in accordance with the policies and
     procedures of the Agency and each National Program Office. In that role, they are
     responsible for the following regional consent decree tracking and follow-up
     activities:

          1. Assuring, along with ORC, that proposed consent decree agreements contain
          provisions/milestones that maximize the Region's ability to determine
          compliance status.

OECM-EPA            	             .                  	   	     January 1990

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                              Judicial Consent Decree Tracking Directive
           2. Determining compliance with the consent decree requirements through the
           use of announced and unannounced inspections and the receipt and review of
           deliverables.

           3. Determining whether there are violations of the consent decree and
           notifying the ORC of each violation.

           4. Maintaining a database of consent decree status which tracks completion of
           consent milestones and denotes violations.  (Can be a component of a
           Region-wide consent decree database system.)

           5. Determining (jointly with the ORC) the appropriate Agency response to each
           violation.

           6. In concert with the ORC, maintaining complete file documentation of
           consent decree violations and the subsequent follow-up activity, including
           documentation of all consent decree violations and follow-up decisions. (File
           documentation must be maintained in whatever file or files the Region uses as
           the official case file, whether in a separate Program file, ORC file or a common
           Program-ORC file.)

           7. Notifying the ORC when all the requirements of the consent decree have
           been met so that the ORC can track and assist in the termination of the
           decree according to the terms of the decree.

      Offices of Regional Counsel:

           The Office of the Regional Counsel in each Region is responsible for the
      following Regional Office consent decree tracking and follow-up activities:

           1. Assuring that each settlement agreement complies with the "Guidance on
           Certification of Compliance with Enforcement Agreements" (July 25,1988
           memorandum from Thomas L. Adams to AAs, RAs, and RCs).

           2. Obtaining a copy of the entered decree and providing it to the appropriate
           regional program compliance office and to the NEIC Central Depository in a
           timely manner. A copy must also be provided to the Financial Management
           Office (FMO) in the Region when the decree requires a penalty payment.

              [ The regional FMO, after receiving a copy of the entered decree, will enter the
            penalty amount into the Integrated Financial Management System (IFMS). EPA policy
            requires that all judicial penalty amounts be recorded in the IFMS as "accounts
            receivable" and that they be tracked as receivables until collected or terminated. The
            Land and Natural Resources Division at DOJ is the responsible entity for monitoring
            judicial penalty debts and notifying EPA's Financial Management Division of the
            status of penalty payments. This information is placed in the IFMS so that Regions can
            determine if penalties requirements of the decree have been met The program
            database as well as the Enforcement DOCKET database should contain a
            milestone/ requirement for tracking penalty payment.]
OECM - EPA                                                                         January 1990

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                           Judicial Consent Decree Tracking Directive
         3. Determining (jointly with the Regional Program Divisions) the appropriate
         follow-up action the Region will take in response to a violation of the decree.

         4. Providing legal support and services to the programs, as necessary, to enforce
         the consent decree.

         5. In concert with the Program Division, maintaining complete file
         documentation of consent decree violations and the subsequent follow-up
         activity, including documentation of all consent decree violations and
         follow-up decisions. (File documentation must be maintained in whatever file
         or files the Region uses as the official case file, whether in a separate ORC file,
         Program file, or a common Program-ORC file.)

         6. Maintaining and reporting data on the status of active consent decrees as
         might be required by the Agency management and accountability systems.

         7.  Assisting in obtaining the termination of consent decrees which have
         been successfully fulfilled, including updating the Agency DOCKET
         database to reflect current status.
                   CONSENT DECREE TRACKING REQUIREMENTS
     1.  IMPLEMENTING THE AGENCY GUIDANCE ON CERTIFICATION OF
        COMPLIANCE WITH ENFORCEMENT AGREEMENTS

     Background:

          Certification requirements were prescribed in the July 25,1988 memorandum
     from Thomas L. Adams Jr. to Assistant Administrators, Regional Administrators
     and Regional Counsels, "Guidance on Certification of Compliance with Enforcement
     Agreements." This Guidance addresses the inclusion of compliance certification
     language (in which a responsible official personally attests to the accuracy of
     information contained in compliance documents made available to EPA pursuant to
     the terms of a settlement agreement) and the need for including precise
     documentation requirements for self-certifying provisions of the decree.

     Requirements:

          Each Region must take steps to insure mat all staff involved in drafting and
     negotiating consent decrees are fully aware of the requirements of the July 25,1988
     guidance memorandum and this Policy. (While that guidance applies more broadly
     than to consent decrees, the discussion in this Policy will refer only to consent
     decrees, consistent with the scope of the rest of the document)

          Staff involved in drafting consent decrees must incorporate the guidance for
     documentation of compliance and for certification by a responsible official unless
OECM - EPA
                                                                             January 1990

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                             Judicial Consent Decree Tracking Directive
      they affirmatively determine and document that the policy is not applicable to a
      specific case. Therefore, each consent decree should specify that all future reports by
      the settling party to the Agency, which purport to document compliance
      with the terms of the decree, shall be signed by a responsible official. The need for
      certification and documentation requirements should be raised early in the
      negotiation and drafting process.

          Regional managers who review and approve drafted consent decrees must
      assure that the Guidance has been adequately incorporated or determine that the
      Guidance is not applicable for the specific case.

          Staff and managers within the OECM Associate Enforcement Counsel Offices
      must also review drafted consent decrees for inclusion and/or applicability of the
      Guidance. Implementation of the certification and documentation requirements
      will be a component of the ongoing oversight and periodic reviews conducted by
      OECM.
     2. REGIONAL CONSENT DECREE TRACKING DATABASE MANAGEMENT

     Background:

          Regional Program Divisions are responsible for tracking compliance with active
     consent decrees once the decree has been entered by the Court. The ORC is
     responsible for obtaining a copy of the entered decree and providing it to the
     Program Division and the Financial Management Office (for penalty tracking). If the
     decree has been entered but a copy has not yet been made available, the program can
     use the lodged decree during the interim, if it is known that the final decree was not
     changed.

          Compliance tracking is accomplished through the receipt of reports and other
     deliverables from the consent decree parties and through the use of announced and
     unannounced inspections. In order to determine whether a party is currently in
     compliance with the consent agreement, the program compliance staff must
     compare the requirements of each decree with the information gathered through
     inspections and deliverables. In the case of deliverable items, the compliance staff
     should determine if the submission adequately meets the decree requirements.

          Good database management is an important element for effective and timely
     tracking and reporting of case status. This policy outlines requirements for the
     consent decree databases that are used to track consent decrees for each Regional
     program. Additional elements may be required by each of the National Program
     Offices.

     Requirements:

          Each program responsible for tracking consent decree compliance status must
     maintain a consent decree database (file/record).  Each program database must
                                                                                       i
                                          4
OECM-EPA                                                                     January 1990!

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                            Judicial Consent Decree Tracking Directive
     include the following information for each active decree: case name and
     enforcement civil judicial docket number, statute/program, all required milestones
     and their due dates, and a block for inserting the date each milestone was completed.

          The consent decree database can be manual, on a personal computer or
     included as a part of a national compliance database such as the CDS of the Air
     Program.  The database could also be maintained centrally, as in Region n, where the
     ORC maintains a database of all regional consent decrees using the NEIC - CDETS
     capability. Each Region can choose what database type system(s) to use. For
     programs with only a few consent decrees to track, a manual system may be
     sufficient. Regional programs may opt to use the national compliance database
     depending on its specific capabilities.

          The consent decree database must be maintained in three ways for it to be used
     effectively. Milestones for all decrees must be entered (and revisions, if applicable,
     in the case of amended decrees). On a regular schedule (not less than quarterly), all
     currently due (and overdue) milestones must be extracted from the system and made
     available to staff and supervisors. This use as a tickler system will alert staff as to
     what actions are required to be checked on. Finally, the dates for completed
     milestones must be put into the database on a regular basis (suggested monthly
     updates).
                              ..                                    «•
          Maintaining this database in a central location will allow a program easy access
     to the status of all its decrees, the ability to retrieve all due milestones and a complete
     historical record of each decree as staff turnover and assignment changes occur. It
     will also provide documentation of case history for audits or other oversight activity.
     3. FILE DOCUMENTATION OF VIOLATIONS

     Background:

          Program Divisions are responsible for determining if a consent decree violation
     has occurred. Any milestone not complied with by the due date of the consent
     decree constitutes a violation, regardless of the substantive impact of the deviation
     from the Qtfaent decree requirement In certain cases, Program Divisions may need
     to consuM^Mfc the ORC in determining whether a violation has occurred (e.g.,
     where a dip of force majeure has been made).
      Requirements:

          Regional Program Divisions must notify the ORC of each violation of an active
      consent decree. A violation occurs when any milestone is missed (i.e. a report that is
      one day late is a violation), although there may be instances where, as a matter of
      priority, no formal enforcement action is taken. In addition, a record of the violation
      must be placed in the official Regional case file (see copy of form attached).
OECM-EPA                                                                      January 1990

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                             Judicial Consent Decree Tracking Directive
     4- DECISIONS ON AGENCY FOLLOW-UP TQ VIOLATIONS

     Background:

          When a violation occurs, the Region must determine the appropriate Agency
     response. In some cases, the violation may not pose a threat to public health or the
     environment or jeopardize the party's ability to meet subsequent milestones or the
     final compliance date. In such instances, after a review including the criteria
     discussed in subsection C below, the program office and ORC may jointly decide that
     no follow-up action is required or that a non-formal response may be appropriate.
     Other violations will be more serious and the program and ORC may decide to take a
     formal enforcement action such as seeking stipulated penalties or initiating a
     contempt action. For all violations it is important for the Agency to document the
     decision process within the case record. For all violations, the responsibility for
     determining the appropriate response action is shared by the Regional Program
     Division and the Office of Regional Counsel.

     Requirements:

          A. Responsibility for decision:

            Once a violation occurs, the Program and the ORC must jointly determine
     the Agency response. Given the seriousness of consent decree violations,
     concurrence must occur at no lower than the Branch Chief level in both Offices.
     Disagreements should be elevated to senior management. On the rare occasion
     when the two offices cannot agree, the issue will be resolved at the RA or DRA level.

          B. File documentation of follow-up decisions:

            The decision concerning how the Agency will respond to a violation must be
     documented in the official Regional case file.  The documentation (copy of form
     attached) must include the decision made and the reason for the decision. The
     documentation must also include the signatures of the responsible Program Office
     and ORC Branch Chiefs (or higher level).

          C. General Criteria for follow-up decisions:

             When the Agency enters into a consent decree we expect the defendant to
     comply. We take compliance with the decree very seriously and expect all parties to
     take all steps necessary for timely compliance. As a result, if they are in violation, we
     will normally respond for the purpose of remedying the violation, obtaining a
     penalty, or both. However, given the need to set priorities, we may not choose to
     take a formal action in every instance. The Region is delegated authority to decide
     what follow-up action, if any, to take. The decision not to take a formal action is a
     serious judgment required to be made jointly by the Regional Program Division and
     the Office of Regional Counsel at the Branch Chief or higher level.
OECM-EPA                                                                      jjnuarv 1990

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                            Judicial Consent Decree Tracking Directive
          In selecting the appropriate response, the following factors/criteria might be
     considered.

             Environmental Harm Caused by Violation: What is the level of risk to
          human health and to the ambient surroundings for continuing
          noncompliance?
             Duration of the Violation: How long has the violation continued? Has the
          violation been continuous or interrupted? Has the violation been corrected?
             Good Faith/Bad Faith (Compliance history): Was the violation deliberate?
          Has the party been notified that it was in violation and continued to violate?
          Has the party demonstrated good or bad faith in its past efforts to comply or
          respond to Agency efforts?  Is there a pattern of violations which suggests
          inattention to its compliance obligations, even though the individual
          violations are not, in themselves, of major concern?
             Deterrence Value: Will an action deter future violations?
             Ability to Respond: Will the enforcement action result in compliance?
          Will the facility meet its final compliance date, even though it misseo>an
          interim date?
             Economic Gain: Has the violator gained an economic advantage over its
          competitors as a result of the violation?

          Violations for which a decision not to take a formal action based on competing
     priorities might be appropriate would generally find the party on the positive side of
     the factors above (i.e. no or limited environmental harm from the violation, good
     compliance record, etc.). Situations where the Agency might exercise its discretion
     not to take an action might include:

            - Late reporting with no environmental consequence and without a
          past pattern of delay or noncompliance.

            - Missed milestone, not a major requirement, with expectation they will be in
          compliance with/by the next milestone

            - Violation of an interim limit, magnitude of the exceedence is minor, with
          compliance now achieved or anticipated shortly.
      5. MAINTAINING REGIONAL CONSENT DECREE TRACKING STATUS

      Background:

          Currently, each ORC is responsible for providing consent decree status reports
      each quarter to OECM as part of the Agency SPMS system. In most Regions, the
      information for this report is collected from each program and combined into a
      Regional report.
OECM-EPA                                                                     (anuarv 1990 i

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                             Judicial Consent Decree Tracking Directive
      Requirements:

          The ORCs will continue to be responsible for maintaining information on
      regionwide status of consent decrees and providing Regional reports to OECM, as
      required. The specific nature of these reports may change from the current STAR
      measure. Regional Program Divisions are responsible for supplying
      program-specific information or reports to ORC that might be needed to fulfill
      national reporting requirements in addition to meeting the requirements of their
      National Program Office.

      6. TERMINATION OF CONSENT DECREES AND CLOSING OF CASES

      Background:

          A judicial enforcement case with a consent decree is successfully completed
      when all the requirements of the consent decree, including penalty payments, have
      been met and the termination clause satisfied. At that point, the consent decree
      should be terminated in accordance with the terms of the decree.  Agency databases
      and status reports need to accurately reflect the current status of cases (including cases
      where the requirements of the decree have been fully met, cases for which
      termination of the decree is due, and cases which have been closed after consent
      decree termination). Accurate data are needed to report the status of active decrees
      and for planning, budgeting and other management purposes.

      Requirements:

          Program Divisions, as part of their responsibility for tracking consent decree
      compliance status, must notify the ORC when all the requirements of the consent
      decree have been satisfied.

          The ORC is responsible for working with DOJ to effect the termination of the
      consent decrees, in accordance with the termination clause of the decree (timeframe,
      automatic, plaintiff or defendant motion). The ORC is responsible for tracking the
      termination status of inactive decrees and assisting the completion of plaintiff
      responsibilities, as appropriate. The ORC is responsible for maintaining the current
      status of these decrees in the Agency DOCKET system and dosing cases after
      termination.
OECM - EPA                              	January 1990

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                 CONSENT DECREE VIOLATION AND FOLLOW-UP FORM
                          ••••••^•••M
                           PART A; REPORT OF VIOLATION
                                              Program/Statute:
Case Name:	__       EPA Docket*
Requirement(s) in violation:
 Requirement due date:	
 Requirement was completed late:	 Requirement not completed:
                              (when)                            (check)
 Comments: 	
 Violation documented by:  Signature/date:
                       Print name:
                       Title/organization:
       PART B; DECISION OK RESPONSE TO VIOLATION
Q Type of enforcement action planned:
D Enforcement action determined not to be appropriate for the following reason(s)
Program Division
Concurrences by:
        Name /signature:
        Organization title:
                Date:
                                                       Office of Regional Counsel
                                                                          EPA-OECM Form

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CHAPTER TWO


COLLECTING ADMINISTRATIVE PENALTIES

This chapter describes the roles and responsibilities of EPA
offices (Regions and Headquarters) in collecting penalties
(initial and stipulated) assessed under administrative penalty
programs with the exception of the CERCLA (Superfund) Program and
Section 311 of the Clean Water Act (CWA).  The Superfund Program
has issued specific program guidance for the collection of
Superfund debts.  CWA Section 311 administrative penalties are
assessed and collected by the U.S Coast Guard.

Penalties assessed in final administrative orders are considered
debts under Chapter 31 of the United States Code governing Federal
Money and Finance.  Thus, Federal and EPA debt collection
regulations and procedures must be followed in collecting
penalties.

Failure to adhere to official Agency financial management
procedures could subject an individual to disciplinary action for "
misuse and mismanagement of Federal funds.  If you have any
questions about the recej.pt or collection of penalty funds, check
with your local Financial Management Office (FMO) or the EPA
Claims Collection Officer in the Office of General Counsel.
Authority ft)*" Administrative Penalty Collection	


Statute and Regulations

Fiscal Accounting

Chapter 31 U.S.C. 3512 et sea, requires the heads of each
executive agency to establish and maintain a system for accounting
and internal controls.  The EPA Delegations Manual authorizes the
Director of FMD to develop Agency-wide financial policies and
procedures and to maintain the official books of record.
Authority also is delegated to Headquarters and local Financial
Management Offices (servicing FMOs) to provide general accounting
services and to receive and deposit funds.  Procedures pertaining
to fiscal management of penalty debts are set forth in Office of
the Comptroller's Resource's Management Directives System (RMDS)
2540 Chapter 9.  [This Directive is currently being revised and
when final shall be made an Appendix in this chapter].  Agency-
wide financial policies include the establishment of an EPA FMO
lockbox system for the payment of administrative enforcement
penalties and Superfund payments.  See Appendix 1 of this chapter.
However, the Superfund Program has a separate Directive (RMDS
2550D) for financial management of the Superfund Program.

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                                2-2

CHAPTER TWO	COLLECTING ADMINISTRATIVE  PENALTIES


Administrative Debt collection

Chapter 31 U.S.C. 3701 et seg.  requires the heads of agencies to
attempt collection of all claims  (including fines and penalties)
of the United States arising out of activities of the agency.
Section 3701 also provides that executive agencies may compromise
claims of not more than $20,000 (excluding interest).  The Federal
Claims Collection Standards (FCCS) at 4 C.F.R. 101-105 and the EPA
Claims Collection standards (CCS) at 40 CFR Part 13 prescribe
minimum debtor notification requirements and collection
procedures.

EPA's Office of the Comptroller is responsible for establishing
minimum notification requirements and for taking the necessary
collection actions.  These duties have been delegated to the
Financial Management Division (FMD) in the Office of the
Comptroller as described below.


Consolidated Rules of Practice  for Administrative Proceedings

Prior to April 1985, the EPA Hearing Clerks who maintained the
administrative case docket for Administrative Law Judges were
responsible for collecting penalties under the 1980 Consolidated
Rules of Practice (C.R.O.P.).    40 C.F.R. 22.31 of C.R.O.P.
requires the respondent (debtor) to send payments to the Regional
Hearing Clerk.  In April 1985, this procedure was superseded by an
Agency-wide decision to have all debts including penalties paid
through the EPA Regional lockbox system.   See Appendix 1 of this
chapter for the list of Regional lockbox depositories.   The
Consolidated Rules of Practice are in the process of being revised
to make the rules consistent with these procedures.
Roles and Responsibilities
The collection of administrative penalties requires the
coordination of the Regional Program Office (RPO), the Regional
Financial Management Office (FMO), the Office of Regional Counsel
(ORC) and the Regional Hearing Clerk.  Their respective roles and
responsibilities are described below.   Each Office should
designate a specific individual or position as a contact point for
dealing with financial matters.

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                               2-3

CHAPTER TWO	COLLECTING ADMINISTRATIVE PENALTIES


A  model "streamlined" system for carrying out these procedures
and coordinating the interlocking responsibilities of the above
EPA offices is described in Appendix 2 of this chapter.  This
model system will be adopted in the final RMDS, 2540.

Regional Program Office

The RPO has overall responsibility for implementing an
administrative penalty program pursuant to national program
guidance.  This includes tracking final orders until all
requirements, including penalty payments, have been met.  Since
collection of administrative penalties must be done in accordance
with Chapter 31 of the U.S.C., the RPO must inform the Regional
FMO when a penalty has been assessed (final order) and must inform
the violator to pay penalties through the EPA Regional lockbox
system.  For each final order, an individual will be designated to
coordinated with the FMO on all activities pertaining to payment
of the penalty.

The RPO, as the originating office of the final order, must
provide to the FMO, within three working days of a signed final
order, the following:

       o  A copy of the signed final order containing the penalty
          assessment and the transmittal letter to the violator.
          A copy of the "Bill for Stipulated Penalties" where this
          requirement applies based on discussions at pages 2-5
          through 2-7.  For installment payments, attach also a
          schedule of payment amounts and respective due dates.

       o  The form entitled:  EPA Enforcement Payment Accounts
          Receivable Control Number Form (see Appendix 2 of this
          chapter), hereinafter referred to as the Enforcement
          Control Number Form, with the originating office data
          included.  The Enforcement Control Number Form should be
          attached to the final order.  This form should be used
          when sending documents to the FMO that create a new
          accounts receivable, including a "Bill for Stipulated
          Penalties", or to modify an existing accounts
          receivable.  The FMO will return the Form to the RPO
          with the accounts receivable control number.  The Form
          with the control number filled in should be included in
          the RPO case file for review in the context of audits.

The RPO also is responsible for notifying the FMO of any errors or
changes in the status of the penalty assessed in the final order
or the assessment of stipulated penalties for violations of
requirements of the order.  The RPO must ensure that the EPA

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                               2-4

CHAPTER TWO	COLLECTING ADMINISTRATIVE PENALTIES


Regional lockbox number is on all documents drafted and negotiated
and transmitted to the Defendant regarding the payment of
penalties.

Where the ORC, by agreement with the RPO, is the originating
office in drafting, negotiating, litigating or settling the
administrative case or assessing stipulated penalties, the ORC
must perform all of the above requirements in lieu of the RPO.
This includes designating a specific individual as a point of
contact for each final order.

Regional Financial Management Office

The Headquarters Financial Management Division, along with the
Regional FMO, is responsible for maintaining and updating the
Integrated Financial Management System (IFMS), the Agency's
official system for reporting the status of penalty payments.
Upon receipt of the copy of a final penalty order and the
Enforcement Control Number Form (see Appendix 2 of this chapter),.
the local FMO is responsible for establishing the "accounts
receivable" file. The FMO must then fill out the remaining portion
of the Enforcement Control Number Form including the accounts
receivable number and send copies of the Form to the RPO, ORC and
the Regional Hearing Clerk.

Once entered into the IFMS as an accounts receivable, the local
FMO is responsible for tracking the accounts receivable,  accepting
penalty payments through the EPA Regional lockbox system, sending
out demand letters when penalty payments are not received,
assessing interest and handling charges, maintaining the general
ledger, and making every effort to collect debts.

The FMO also is responsible, using the IFMS control number, for
keeping the RPO, ORC and Regional Hearing Clerk informed on the
status of penalty collection including sending these offices
copies of payments.  The FMO must also notify the RPO and the ORC
when the penalty debt is 120 days in arrears and/or when it
anticipates that the debt collection remedies available under its
authorities will not be successful in collecting the debt.  FMO
collection remedies available include demand letters, private
collection agencies and credit bureaus or agencies.

Office of Regional Counsel

The ORC is responsible for taking appropriate action (with the
concurrence of the RPO) when notified by the local FMO that a
penalty debt is 120 days in arrears.  The ORC must decide and
notify the local FMO in writing within 30 days on whether to  (l)
recommend to the Regional Administrator that the uncollected debt

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                               2-5

CHAPTER TWO	COLLECTING ADMINISTRATIVE PENALTIES


be referred to the Department of Justice, Land and Natural
Resources Division for the initiation of a judicial action, (2)
authorize additional FMO collection procedures such as private
collection agencies or (3) terminate the debt.  The ORC is
responsible for keeping the RPO and the FMO informed in writing,
using the IFMS control number, on the status of any penalty debt
referred to the ORC for enforcement action.

If the ORC is the originating office of the final order instead of
the RPO, then the ORC is responsible for the duties described in
the RPO section with regard to notifying the local FMO of the
creation of a. penalty debt.


Regional Hearing Clerk

The Regional Hearing Clerk is responsible for maintaining the
Administrative Law Judge Hearing Docket.  Since April 1985 when
the EPA lockbox payment procedure was established, the Regional
Hearing Clerk has not had the responsibility for receiving penalty
payments.  See Appendix 1 of this chapter.  However, the Hearing
Clerk is responsible for maintaining the official administrative
record on each case including updating the official record when
he/she receives notice from the FMO that a penalty payment h*is
been received.  The Hearing Clerk should enter the IFMS control
number into the case file so that penalty payment update
information can be requested from the IFMS when needed.
Financial Management: Collection Procedures	

This section describes the procedures for tracking "accounts
receivable" and collecting penalties pursuant to Chapter 31 of the
U.S.C., the Federal and EPA Claim Collection Standards, and
Treasury Department and OMB requirements as set forth in the EPA
Office of Comptroller, Resource Management Directives System
(RMDS).
Accrual Accounting

Chapter 31 U.S.C. 3512 entitled, "Executive Agency Accounting
Systems", prescribes the use of accrual accounting.  Under the
accrual basis of accounting, an accounts receivable represents the
amount due from others, and is accounted for as an asset from the
time of the event giving rise to such a claim (the time the
event occurs), until such time as the amount is collected, or

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                               2-6

CHAPTER TWO	COLLECTING ADMINISTRATIVE PENALTIES


determined to be uncollectible in whole or in part.  The
responsible FMO is to enter promptly every billing transaction
into the IFMS to establish and allow for the tracking of the
receivable.  Chapter 31 U.S.C. 3701 et seq. requires agencies to
charge interest on outstanding debts from the date on which
notification of the amount is first mailed to the debtor (the
original billing), and assess other processing and handling
charges, unless the debt is paid by the due date.


Action Document That Establishes the Penalty Debt

FMOs must account for all funds due the Federal government as a
result of EPA activities.  EPA enforcement offices must inform the
FMOs when a penalty debt has been created.  The "action document"
that establishes the creation of an up-front or stipulated penalty
debt is described below.


Up-Front Penalty (Past Violations)

Under the FMD system, an EPA up-front administrative or judicial
penalty becomes an EPA accounts receivable when a final order is
issued.  This is considered the "action document that establishes
a debt".  The transmittal letter and copy of the final order
(action document) that the RPO sends to the violator constitutes
the "original billing" in financial management language.   If the
penalty is not paid in accordance with the terms in the original
bill, follow-up letters sent by the local FMO are called "demand
letters".


stipulated Penalties (Future Violations)

Stipulated penalties are penalties, agreed to by the violator at
the time of entering into settlement, as being payable in the
event that tfce violator does not comply with specified terms of
the agreement.

in the case of stipulated penalties, the FMD "action document" is
a written notice to the violator entitled: "Bill for Stipulated
Penalties". Once a stipulated penalty provision has been
triggered, the responsible Agency enforcement official sends the
violator a transmittal  letter and a "Bill for stipulated
Penalties" that informs the violator of the amount of money due
the Agency under the stipulated provision, the date it is due and
the method for payment  (EPA lockbox).

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                               2-7

CHAPTER TWO	COLLECTING ADMINISTRATIVE PENALTIES


The wording of the stipulated penalties provision determines when
the penalty has become an accounts receivable.  The two common
options are: (1) the settlement agreement may provide that the
penalty is automatically due upon the occurrence or non-occurrence
of a specified event, or (2) the settlement agreement may make the
penalty payable only on demand by the government.  The guidance on
the use of stipulated penalties, located in Appendix 2 of Chapter
One, provides additional information on these options.  This
manual does not dictate an option but identifies when the accounts
receivable is triggered under each of these options and the
process for collecting stipulated penalties.

If the wording of a stipulated penalty provision is "on demand",
then the accounts receivable is created only after the designated
Agency enforcement official determines that a penalty is due the
Federal government.  Once the determination is made, a "Bill for
Stipulated Penalties" (action document) is sent to the violator.
With the "on-demand" provision, the responsible Agency enforcement
official makes a determination to demand a penalty pursuant to any
terms negotiated in the original consent order.  Prior to the
issuance of the official "Bill for stipulated Penalties" (action
document), any letters, discussions and negotiations regarding the
activation of a stipulated penalty provision pursuant to our
statutory enforcement authority and any dispute resolution clause
provided under the consent order do not constitute the creation of
an accounts receivable.

Only after any disputes over an "on-demand" stipulated penalty
provision have been resolved in accordance with the guidance on
the Use of stipulated Penalties in EPA Settlement Agreements (See
Appendix 2 of Chapter 1), will the designated Agency enforcement
official send the violator the "Bill for Stipulated Penalties"
(action document).  The FMO should receive a copy of the "Bill"
and a completed Enforcement Control Number Form as notice that a
new accounts receivable has been created.

If the wording of a stipulated penalty provision is "automatic",
then the accounts receivable is created at the time the specified
event occurs.  As soon as the responsible Agency enforcement
official monitoring the Final Order (RPO or ORC) learns of the
occurrence or non-occurrence of the specified event, a transmittal
letter and "Bill for Stipulated Penalties"  (action document)
should be sent to remind the violator of the amount due, the date
it was due and the method for payment  (EPA lockbox).  The FMO
should receive a copy of the "Bill" and a completed Enforcement
Control Number Form.

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                               2-8

CHAPTER TWO	COLLECTING ADMINISTRATIVE PENALTIES


Under the "automatic" provision, penalty amounts can only be
altered by formally amending the original final order.  Such
amendments may be required because of unforeseen changes to the
significant event which triggers the stipulated penalty provision.
Where an amendment is required, the "Bill for Stipulated
Penalties" and an amended final order signed by the Regional
Administrator (or his/her delegatee) should be sent to the
violator, with copies to FMD, as the "action document" that
establishes the stipulated penalty debt.


Notifying the Debtor

Once the designated EPA enforcement personnel has determined that
an up-front or stipulated penalty "debt" has been established and
has prepared the appropriate "action document" that creates the
accounts receivable, the next step in debt collection is notifying
the debtor that penalties are due (the original billing).   Both
the transmittal letter and the final order drafted by the RPO (or
the ORC if lead) should include clear instructions to the debtor
on terms and conditions for payment, including how much is due,
when it is due, where the payment is to be made under the EPA
Regional lockbox system and the consequences of default. The
specific language on payment instructions is in the model system
in Appendix 2 of this chapter.


Notifying the FMO of Penalties Assessed

Within three working days of a signed agreement, the RPO (or the
ORC if lead) should send copies of the transmittal letter and
final order (original billing) to the FMO, thus notifying the FMO
that penalties have been assessed.  Attached to the final order
and transmittal letter should be the completed Enforcement Control
Number Form (see Appendix 2).  The Regional Hearing Clerk and the
ORC attorney also should be sent copies of the transmittal letter
and final order for their records.


Establishing Accounts Receivable

The servicing FMO will establish an accounts receivable for each
final order in accordance with Agency financial management
procedures.  The FMO will notify the RPO, ORC and Regional Hearing
Clerk of the IFMS accounts receivable control number by filling

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                                2-9

CHAPTER TWO	COLLECTING ADMINISTRATIVE PENALTIES


out the FMO section of the Enforcement Control Number Form and
sending each designated office a copy of the form with the
attached front page of the final order.


Follow-Up Billings

Until payment is received, or the debt is referred to the ORC
for judicial collection, the servicing FMO will be responsible for
follow-up billings (demand letters).

    o  30 days after the due date—First demand letter is sent to
       the debtor, providing notice that payment has not been
       received, interest has begun to accrue and a handling
       charge is being assessed.

    o  60 days after the due date—Second demand payment letter is
       sent providing notice that interest and handling charges
       are accruing and advising of the consequences of failure :to_
       pay.

    o  90 days after the due date—Final demand letter is sent,
       repeating the information on interest, handling charges and
       the assessment of a late payment penalty.

    o  120 days after the due date—The FMO notifies the ORC in
       writing that collection activities have been unsuccessful
       and that payment is 120 days outstanding.  The debt then
       becomes the responsibility of the. ORC,. but the FMO can
       provide advice to the ORC on the availability of other FMO
       collection activities such as referral to a credit agency.


Uncollected Administrative Penalties Debts

As noted above, at 120 days, after receiving no response to the
third demand letter, the responsible FMO must review the case to
determine whether there are any additional means available that
could be successful in collecting the administrative penalty
(debt).  This includes the use of a private collection agency.  At
this point,.120 days after the penalty due date, the FMO should
refer the uncollected debt (accounts receivable) to the ORC with a
recommendation on whether to pursue additional FMO collection
activities.

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                                2-10

CHAPTER TOO	COLLECTING ADMINISTRATIVE PENALTIES


ORC Option Selection

ORC option selection must occur within 30 days of a referral from
the FMO to the ORC.  The ORC should consult with the FMO and RPO
and select one of the following options:  (1) refer to the DOJ for
judicial enforcement action, (2) pursue additional FMO collection
activities such as referral to a private collection agency, or (3)
recommend suspension or termination of the debt.   Options 2 and 3
are carried out pursuant to Chapter 31 U.S.C. 3701 (Federal Claims
Collection Act) and the Federal and EPA Claims Collection
Standards.  Once either Option 2 or 3 is chosen,  Option 1,
referral to DOJ for judicial enforcement, cannot be pursued absent
stringent unanticipated circumstances where our enforcement
authority must be upheld.

Option selection is required to avoid confusion over who in EPA is
responsible and accountable for collecting funds owed to the
Federal government.  Under Option 1, once the administrative debt
is referred to DOJ-LNRD, DOJ is responsible for pursuing
collection of the debt and keeping the ORC informed.   Under
Options 2 and 3, the debt is pursued within EPA under the FMO
collection procedures set forth in RMDS directives and the FMO is
responsible for collection efforts.

The reason for interrupting FMO collection activities at 120 days
and referring the debt to the ORC for option selection is to
ensure that EPA's enforcement authority is not compromised by
pursuing open-ended administrative debt collection activities.
Federal agencies including EPA only recently have received
statutory authority to use private collection agencies.  Until the
EPA has sufficient experience with private collection agencies and
that experience shows that the debts can be collected quickly
(within 30 days), the recommendation of this Manual is that the
penalty debt be referred to DOJ-LNRD for judicial enforcement.
This approach reinforces EPA's enforcement policy to escalate the
enforcement response from the administrative to the judicial forum
in response to continuing noncompliance.

    The ORC must notify the FMO in writing, within 30 davs from
receiving notice from the FMO of a penalty payment default, of its
choice of options.  A copy of the written notification should be
included in the case file.  If Option 1 is chosen, the written
notice to the FMO should include a statement that EPA is pursuing
its enforcement options under the appropriate statute and
referring the debt to DOJ-LNRD.  With Option 1, the ORC should be

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                               2-11

CHAPTER TWO	.	COLLECTING ADMINISTRATIVE PENALTIES


prepared to update the FMO quarterly on the status of DOJ debt
collection.  Quarterly notice is important because while the FMO
is no longer responsible for pursuing collection under Option 1,
the FMO is still responsible to the Comptroller and OMB for
quarterly reports on the status of all debts owed to the Federal
government (including those referred to DOJ for collection) as a
result of EPA activities.

On rare occasions, the ORC, after consulting with the FMO and the
RPO, may determine that the debt is uncollectible and should be
suspended or terminated to save any further loss of agency
resources in attempting to collect the debt.

Procedures for referring the debt to DOJ for judicial enforcement
or for suspending or terminating the debt are explained below.


Escalation of Enforcement Action on Uncollected Administrative
Penalties.

As noted above, EPA's enforcement policy is to escalate the
enforcement response from an administrative to judicial action
when a violator does not comply with the administrative order
requirements.  Thus, there is a presumption that all
administrative debts are collectable irrespective of the amount.
However, debts under $600 should not be referred to DOJ for
judicial action unless specific requirements _/ are met.

Once DOJ-LNRD has obtained a judicial judgment on an outstanding
administrative debt, the judgment is referred to the USAO.  The
USAO conducts Federal (DOJ) collection activities in accordance
with the law of the State in which the debtor resides.
    Debt collection procedures set forth at 4 C.F.R. 105.4 state:
    "Agencies will not refer claims of less than $600, exclusive
    of interest, penalties, and administrative costs, for
    litigation unless:  (a) Referral is important to a significant
    enforcement policy, or (b) the debtor not only has the clear
    ability to pay the claim but the Government can effectively
    enforce payment, having due regard for the exemptions
    available to the debtor under state and Federal law and the
    judicial remedies available to the Government."

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                               2-12

CHAPTER TWO	COLLECTING ADMINISTRATIVE PENALTIES


The USAO also may be able to use the IRS tax offset referral
program for collecting delinquent penalties once a judicial
judgment has been obtained.


Evaluating Whether to Recommend Termination of the Debt

Administrative penalty debts should be terminated only in extreme
circumstances.  In evaluating whether to terminate the debt, the
following items should be considered:

    o  Inability to collect any substantial amount;

    o  Inability to locate the debtor;

    o  The IRS tax offset program is not a viable option;

    o  Cost will exceed recovery;

Even where no assets are currently available, the deterrent impact
on other similarly situated violators if the government pursues
its judicial debt collection remedies to the fullest must be
considered before the debt is terminated.


Procedures for Compromisingr Suspending or Terminating a Debt

EPA Delegation 1-28 authorizes the EPA General Counsel to collect,
compromise, suspend or end collection action on EPA claims for
money or property (including penalties) arising out of EPA
activities that are less than $20,000.  The General Counsel has
re-delegated this authority to the EPA Claims Officer in the
Office of General Counsel.  The EPA Claims Officer has re-
delegated to the Director of FMD limited authority to compromise,
terminate or suspend debts (See Appendix 3).  Authority and
monetary limits are as follows:

    s Amount                           Office

    less than  4,000                   Regional FMO
    less than  6,000                   HQ FMD
    less than 20,000                   EPA Claims Officer, OGC
    greater than 20,000                DOJ

Administrative penalty debts of less than $6,000 can be terminated
by the FMD with the concurrence of the ORC and RPO.  Debts greater
than $6,000 but less than $20,000 must be referred to the OGC EPA
Claims Officer and require the concurrence of the ORC and the RPO.

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                               2-13

CHAPTER TWO	.	  COLLECTING ADMINISTRATIVE PENALTIES


Debts greater than $20,000 should be referred to the DOJ Land and
Natural Resources Division for judicial collection action through
the direct referral process described in Chapter Four, Appendix 1.


Closure

The servicing FMO will continue to carry a debt referred to ORC or
the DOJ as a receivable, including interest, penalties and
handling charges, until the debt is paid in full, compromised and
paid, or written off.  Therefore, the EPA office to which the debt
has been referred for further collection activity or termination
should update the FMO, quarterly, on the status of the
"receivable" using the IFMS control number.  The EPA office also
should send to the FMO copies of any change in the "receivable" as
a result of these activities.

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                              2-A1-1
 RESOURCES MANAGEMENT DIRECTIVES
 CASH MANAGEMENT
                              Appandh 2540*0

                            LOCKBOX ADDRESSES
                                           2540
 PMO
Ragion 1 •
 Boston
Ragion 2 •
 Naw York
Ragion 3 •
 Philadalphii
Ragion 4 •
 Atlanta
Ragion 5
 Chicago
Ragion €
 Dallas
Ragion 7 •
 Kansas City
Ragion • -
 Kansas City
Ragion t -
 San Francisco
Ragion 20 -
 Saattla
 LOCKBOX BANK


Mtllon Bank



Mallon Bank



Mtllon Bank
Tht Citizana and
fioutharn National Bank
Tha First National
Bank of Chicago


Nallon Bank
Nallon Bank
Nallon Bank
Nallon Bank
Nallon Bank
    ADDRESS FOR
 REMITTING PAYMENT
EPA • Ragion 1
P.O. Box 360197H
Pittsburgh, PA 15251

EPA - Ragion 2
P.O. Box 360188M
Pittsburgh, PA 15251

EPA - Ragion 3
P.O. Box 360515M
Pittsburgh, PA 15251

EPA - Ragion 4
P.O. Box 100142  -
Atlanta, CA 30384

EPA - Ragion 5
P.O. Box 70753
Chicago, 1L 60673

EPA - Ragion 6
P.O. Box 360582M
Pittsburgh, PA 15251

EPA • Ragion 7
P.O. BOX 360748M
Pittsburgh, PA 15251

EPA - Ragion 0
P.O. Box 360859M
Pittsburgh, PA 15251

EPA • Ragion t
P.O. Box 360863M
Pittsburgh, PA 15251

EPA • Ragion 10
P.O. Box 360903M
Pittsburgh, PA 15251

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                                    2-A1-2
                                                                 APPEICIX L
RESOURCES MANAGEMENT DIRECTIVES
FINANCIAL MANAGEMENT OF THE SUPERFUNO PROGRAM
REGIONAL SUPSRPUND LOCKBQX PEPOSfTORIES
                                                  25500

                                                  7/25x
           REGIONAL SUPERFUND LOCKBOX  DEPOSITORIES
    PMQ
    Region 1
    Boston
    Region 2
    Now York
    Region 3
    Philadelphia
    Region 4
    Atlanta
    Regions
    Chicago
    Region 6
    Region?
    Kansas Cty
    Region I
    Denver
     Region I
     SanFnndHD
     Region 10
     Seattle
LQCKBQX BANK


 Melon Bank



 Melon Bank



 Melon Bank
 The Clbens and Southern
 ttettonalBank
 The FW National Bank
 of Chicago
 Melon Bank
 Melon Bank
   ADDRESS FOR
REMITTING PAYMENT
  Melon Bank
  Melon Bank
EPA
Ann: Suptrtund Accounting
P.O. BOK 360197M
Pttsburgh, PA 15251
EPA • Region 2
Ann: Supertund Accounting
P.O. Box 360188M
Pittsburgh. PA 15251

EPA-Region 3
Ann: Suptrtund Accounting
P.O. Box 360S15M
Pittsburgh, PA 15251

EPA-Region 4
Ann: Supertund Accounting
P.O. Box 100142
Atlanta. QA 303S4

EPA-Region 5
Ann: Suptrtund Accounting
P.O. Box 70753
Chicago, IL 60673
EPA - Region 6
Ann: Suptrtund Accounting
P.O. Box 360562M
Pittsburgh, PA 15251

EPA-Region?
Ann: Supertund Accounting
P.O. Box 360748M
Pttsburgh, PA 15251
EPA-Regions
Ann: Suptrtund Accounting
P.O. Box 360859M
Pttsburgh, PA 15251

EPA-Region t
Ann: Suptrtund Accounting
P.O. Box  360663M
Pttsburgh, PA 15251

 EPA-Region 10
 Ann: Supertund Accounting
 P.O. Box 360903M
 Pittsburgh, PA 15251
                                   Appendli 25500-3

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                               2-A2-1
                       [STRATIVE
Introduction

The Regions require a systematic method for tracking the payment
of the fines and penalties under agreements which conclude with
enforcement actions.  Although the servicing Financial Management
Office (FMO) has the lead responsibility for tracking the accounts
receivable and collecting the fines and penalties, the RPO and ORC
(if lead) must notify the FMO of the assessment of an
administrative penalty so that the FMO can establish an "accounts
receivable".

In order to have a sound tracking system:  (1) EPA must make it
clear to the person owing the money how much is due, when it is
due, the interest accrual if not paid when due, and where payment
is to be made; (2) the final order must be sent to the FMO for
tracking; and (3) there must be a way to verify and record receipt
of the payment.

Region V has recognized the need for a systematic approach and in
June 1987 instituted procedures for the payment of fines,
penalties and reimbursements under administrative orders.  These
procedures were originally developed as a joint effort among the
Region V Regional Counsel, Program, and Financial Management
staffs.  The procedures have proven to work well because they
define each party's responsibility in the process and they
represent a joint effort in their development.

Region V's procedures for administrative penalty collection have
been adopted in this Manual but modified to include the EPA
Enforcement Payment Accounts Receivable Control Number Form
(hereinafter referred to as the Enforcement Control Number Form)
located at the end of this Appendix.  The Enforcement Control
Number Form was a necessary addition to allow consistent tracking
of the same accounts receivable (penalty) by different EPA
offices.
The Final Order

Once the final administrative order (AO) has been signed by the
Regional Administrator, the appropriate RPO (or ORC if originating
office) will send the signed AO with a transmittal letter to the
respondent (debtor) in the case by certified mail (return receipt
requested) and send a copy to the attorney representing the party.

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                               2-A2-2

CHAPTER TflQ	     APPENDIX 2


The program office also will fill out the "originating office"
section of the IFMS Form (see p. 2-A2-50), attach to the IFMS Form
the final copy of the AO and the transmittal letter to the
respondent, and send them to:

    o  the Regional Financial Management Office;

    o  the Regional Counsel;

    o  the Regional Hearing Clerk; and

    o  the Headquarter's program office (where required by the
       Headquarter's program.)

Both the AO and the transmittal letter must include the following
provisions:

    o  payment of the fine or penalty must be made by the date
       specified in the executed order;

    o  a statement to the effect that if payment is not
       received within 30 days  of the date of the notification
       (billing), interest charges will be assessed from the date
       of notification through the date of payment at a rate
       established by the U.S.  Treasury (rate changes,  no more
       frequently than quarterly).   Additionally, a hand-
       ling charge will be imposed in 30-day increments
       consisting of $15.00 after the first 30 days and
       $15.00 for each additional 30-day increment.  A six
       percent per annum penalty will be applied on any
       principal amount not paid within 90 days of the due
       date applied 120 days from the date of the bill;

    o  payment of the fine or penalty is to be made to the
       designated lockbox for the Region; and,

    o  tranaiaittal of copies of the check to any designated
       person in the program and/or the ORC.

When the FMO receives the AO, the transmittal letter, and the IFMS
Form, the assessed penalty amount will be entered into the
Integrated Financial Management System (IFMS) as an accounts
receivable and will be given an IFMS control number.  This number
will be entered on the Enforcement Control Number Form and copies
of the Form and the front page of the AO will be sent to the
designated offices on the Form.

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                              2-A2-3

CHAPTER TWO	APPENDIX 2


Once the FMO gets confirmation of the payment from the bank, the
FMO will update the accounts receivable.  A copy of the payment
with the IFMS control number will be forwarded by the FMO to the
designated persons in the ORC and RPO for their tracking purposes.
A copy also will be sent to the Regional Hearing Clerk who
maintains the official administrative record on the case.


Modifications and Stipulated Penalties

Once an accounts receivable has been established for a penalty
order, two events could change the accounts receivable:

    o  Modifications - An order could be amended to increase
       or reduce the total up-front penalties assessed in the
       order.  This requires an amended order signed by the
       Regional Administrator.

    o  Stipulated Penalties - The order may provide that if
       milestone(s) are missed, stipulated penalties will
       be assessed.  This requires a "Bill for stipulated
       Penalties" to be sent to the violator for the
       original amount agreed to in the order.  Depending
       on the wording of the stipulated penalties clause, a
       change in the stipulated penalty amount to be paid
       may require an amended order signed by the Regional
       Administrator (or his/her delegatee).

The RPO or the (ORC if lead) has the responsibility for notifying
the FMO of modifications or stipulated penalties using the
Enforcement Control Number Form that contains the IFMS accounts
receivable control number.  The same procedures described in "The
Final Order" section above, apply for implementing modifications
and stipulated penalties.


Failure to Pay Penalties

All EPA administrative penalty debt collection activities must be
done pursuant to Resources Management Directives (RMDS) 2540,
Chapter 9).  All Superfund debt collection activities must be done
pursuant to RMDS 2550D.


Correction of Errors on Accounts Receivable

If an account receivable is no longer valid  (e.g., EPA was in
error in the amount of penalty assessed in the Final Order), the
appropriate RPO or ORC lead official must notify the servicing FMO

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                               2-A2-4

CHAPTER TWO	APPENDIX 2


in writing.  The memorandum should reference the specific IFMS
control order number, date, name and amount.  An explanation for
the change in the status of the account receivable also should be
provided in the memorandum.  Copies should be sent to the
appropriate parties as described previously in the "Final Order"
section of this Appendix.

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                             2-A2-5

CHAPTER TWO	APPENDIX 2



      EPA ENFORCEMENT ACCOUNTS RECEIVABLE CONTROL NUMBER FORM

TO BE FTT.T,jm OUT BY ORIGINATING OFFICE;
(Attach a copy of the final order  and transmittal letter to
Defendant/Respondent)
This form was originated  by: 	 	
                             [Name of contact person]     [Date]
in the 	:	at 	
 1	' Decree. USAO  COLLECTS.       '	' Consent Agreement

 I	1 SF Jud. Order/Consent
                 [office]                     [phone number]

     Non-SF Jud. Order/Consent   |	\  Administrative Order/
                                      Consent Agreement
                                      FMO COLLECTS PAYMENT.

     Decree.  FMO COLLECTS.

'	'  This is an original debt    '	'  This is a modification

Name of Person and/or Company/Municipality making the payment

— ^ — _• —• —_ __ ^ «» «. _ _ _ _ ^ ^ __ _ _ _ _ M_ .v w -•• — «_ — ^ — ^^ — ^ « — — —• — ^ — — ^^^^ «• _ _K ^ _ _ ^ _ _ ^ ^ _ « ^«_ _ a^ ^ _ •__ ^ _• _ .
The Total Dollar Amount of Receivable 	
(If in installments, attach sch. of amounts and respective due dates)

The Case Docket Number  	;	
 The  Site-Specific  Superfond (SF)  Acct.  Number

 The  Designated Regional/HQ Program Office  	
 TO BE FTT.r.P!T^ QUT BY LOCAL FINANCIAL MANAGEMENT OFFICE;

 The IFMS  Accounts Receivable Control Number 	

 If you have  any questions call:
                                   [Name of Contact]      [Date]
 in the  Financial Management Office,  phone number:	
 JUDICIAL ORDERS:  Copies of this form with an attached copy of the front
 page  of  the final Judicial order should be mailed to:

 1.  Debt  Tracking  Officer                 2. Originating office (ORO
    Environmental  Enforcement Section     3. Designated Program Office
    Department of  Justice/Rm. 1647D
    P.O.Box 7611,  Benjamin Franklin station
    Washington, DC  20044 -

 ADMINISTRATIVE ORDERS:  Copies of this form with an attached copy of
 the front page of the f*dm^n?^trative  order should be sent to:

 l.   Originating office                2.  Designated Program Office
 3.   Regional Hearing Clerk            4.  Regional Counsel

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                                2-A2-6

CHAPTER TWO  _ ; _ APPENDIX 2

                               GLOSSARY

Below are kev terms for filling out the EPA Enforcement Payment
Account Receivable Control Number Form.

EPA Originating Office - In the case of administrative orders, the
EPA office that originates and sends a copy of the signed final order
and the transmittal letter to the defendant/respondent is responsible
for filling out. the top half of the Form.   In the case of judicial
orders . the U.S. Attorneys' Office (USAO)  will in most cases be the
entity that sends a copy of the final (entered) order or consent
decree to the .defendant with a transmittal letter.  By Directive,  the
USAO will send to the appropriate Office of Regional Counsel (ORC) ,  a
copy of the entered order and transmittal letter.  Unless otherwise
designated in a Region, the ORC will be the EPA originating office
responsible for filling out the Form and sending a copy of the
entered order to the FMO.

Designated Regional Headquarters Program Office — This is the Office
responsible for enforcing the statutory program (e.g. , CAA, CWA,
TSCA, RCRA, FIFRA, Superfund, etc.) that governs tke violation.  The
designated program off ice. is responsible for tracking the technical
(non-penalty) requirements. of the order.  This program will use the
IFMS accounts receivable number to check with the FMO on the status
of payment of the administrative or judicial penalty.

Case Docket Number -  This is the number in the upper right hand
corner of the final order that is provided by the Regional Hearing
Clerk (administrative) or the Clerk of the Court (judicial).

Site-Specific Superfund Account Nm"*wr - The ten digit number used in
the Superfund Program to identify a particular site so that monies
can be tied to specific sites and activities.
IFMS Accounts Recftl^able Control Number - When the FMO is provided
documentation (final order) on the creation of a debt, the FMO enters
the debt into the Integrated Financial Management System (IFMS) and
creates a new accounts receivable.  If there are several violators
under the same case that will be making a payment, then each "payee"
receives a different control number.  The FMO will fill out a
separate copy of the Form  for each payee and accounts receivable
control number.
The completed version of the Form with the EPA Originating Office and
the FMO portions of the form filled in should be included in the
enforcement case official  file as a record for audit purposes that
the final order was sent to the FMO and that an accounts receivable
control number was provided.

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CHAPTER THREE
COLLECTING JUDICIAL PENALTIES

This chapter describes the roles and responsibilities of EPA offices
and the Department of Justice (DOJ) in monitoring and collecting
judicial civil penalty judgments.  This chapter does not apply to
criminal fines and penalties.


Payment Depositories	
EPA Judicial Enforcement Penalty Payment

EPA judicial enforcement penalties assessed under EPA statutes with
the exception of CERCLA (Superfund) must be paid to the local U.S.
Attorney Office (USAO) and are deposited in the DOJ lockbox system.


CERCLA (Superfund) Payments

Reimbursements to the CERCLA Trust Fund are not enforcement
penalties and must be paid to the EPA FMO Regional lockbox system.
Appendix 1 of this chapter contains the names and addresses of
Regional Superfund lockbox depositories. Appendix 2 of this chapter
contains the addresses of Headquarters and Regional FMOs.
For information on the financial management of the Superfund Program
see EPA Resource Management Directives (RMDS) 2550D and the
September 20, 1988, Interim Desk Operating Procedures prepared by
the FMD Fiscal Policies and Procedures Branch.
Responsibilities
Department of Justice

The Land and Natural Resources Division (LNRD) Environmental
Enforcement Section  (EES) is responsible for prosecution and
supporting and coordinating the prosecution of all civil and
criminal cases, matters and proceedings arising under EPA statutes.
This includes monitoring and reporting on penalty judicial payments
collected by the U.S. Attorneys' Office.

The U.S. Attorneys' Office is responsible for collecting judicial
penalty judgments  (including consent decree settlements).

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                                 3-2

                                    COLLECTING JTJ
Environmental Protection Agency

EPA Regional Financial Management Offices (FMOs) are responsible for
establishing an "accounts receivable" for judicial penalty judgments
(including consent decree settlements) and for reporting on the
status of the accounts receivable (penalty/debt) until it is paid in
full.  FMOs do not collect, i.e., send out billings or demand
letters for judicial penalties.  This is the responsibility of the
USAO.
Distributing Copies of Final Orders	

Department of Justice

LNRD-EES is responsible for devising an arrangement with the USAO
whereby a copy of the entered (final) judicial order (consent
decree) is sent to the EPA Office of Regional Counsel (ORC).
(Appendix 4 of this chapter contains the addresses of the Regional
Counsel Offices).

Environmental Protection Agency

The ORC is responsible for distributing to the appropriate offices,
copies of entered orders received from DOJ.  This includes sending a
copy of the entered order to the EPA Regional FMO.  The completed
EPA Enforcement Payment Accounts Receivable Control Number Form,
(see Appendix 3 of this chapter), hereinafter referred to as the
Enforcement Control Number Form, should be attached to the FMO's
copy of the entered order.  The FMO will return the Enforcement
Control Number Form with an IFMS accounts receivable control number
included.  The Form with the control number should be included in
the case file for review in the context of audits.
Monitoring P^MH-V Pav»«rn-«
                               Section
LNRD-EES maintains an automated data base entitled:  Land Docket
Tracking System (LOTS).  This system monitors a case from the time a
judgment is entered until verification has been received from the
USAO that all penalties assessed have been paid.  Using LOTS, the
LNRD-EES will provide the EPA HQ-FMD, Financial Reports and Analysis
Branch, with quarterly updates on the status of penalty collection.

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                                 3-3

CHAPTER THREE	COLLECTING JUDICIAL PENALTIES

EPA Regional Financial Management Office

EPA maintains an automated data base that tracks accounts receivable
entitled:  Integrated Financial Management Systems.  Upon receipt of
the final judicial order from the ORC,  the Regional FMO is
responsible for entering the penalty debt into the IFMS and tracking
the debt as an account receivable until it is paid.

To crosswalk between the DOJ and EPA data systems, the Regional FMO
must also, within 3 days of receipt of a copy of an entered (final)
order, send copies of the Enforcement Control Number Form with a
copy of the front page of the entered (final) order attached to the
designated parties on the Form.  LNRD-EES will enter the IFMS number
into the Land Docket Tracking System (LDTS) so that penalty payments
can be tracked under the EPA IFMS control number as well as the
court docket number.


EPA Enforcement Reporting of the Status of Penalty Payments	

Once LNRD-EES receives and records the IFMS accounts receivable
control number in its docket, LNRD-EES will provide to EPA HQ-FMD,
Financial Reports and Analysis Branch, quarterly updates on the
status of the accounts receivable using the LDTS format.   The
Financial Reports and Analysis Branch will distribute the quarterly
updates to the Regional FMOs.

The Regional FMO will input the information it receives on the LDTS
report into the IFMS.  The IFMS will be the official EPA record of
the numerical status of the judicial penalty debt,  other EPA data
bases will provide yes/no information on whether the total penalty
assessed has been paid.  Only the IFMS will be used to officially
report dollar amounts.  The appropriate office, RPO or ORC, should
request information from the Regional FMO using the IFMS accounts
receivable control number in order to verify the status of the
judicial penalty debt for updating RPO data bases and STARS Consent
Decree Tracking System (CDTS).  (See Chapter One, Appendix 3 for
STARS CDTS requirements.)


Coordination of DOJ and, EPA Accounts Receivable Reporting Systems

The DOJ LNRD-EES and EPA-FMD must routinely compare and verify the
accuracy of the data in their systems in order for both offices to
meet their reporting responsibilities under 31 U.S.C. 3512,
"Executive Agency Accounting Systems".

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                                 3-4

CHAPTER THREE  	COLLECTING JUDICIAL PENALTIES


Pursuing Outstanding Penalty Debts	

When a penalty payment is not paid, the USAO will pursue collection
in accordance with the law of the State in which the debtor resides.
The USAO also may use the IRS tax offset referral programs to
collect the debt.


Compromising. Suspending, or Terminating Judicial Penalty Debts

The Attorney General and his delegatee in the Department of Justice
have plenary prosecutorial authority to collect and compromise
judicial penalties.  This authority stems from 25 U.S.C. 516, which
reserves to DOJ the authority to conduct the.litigation
of the United States, including cases in which an agency of the U.S.
is a party, and the cases and regulations broadly interpreting this
authority.

The USAO will notify the LNRD-EES of any plans to suspend or
terminate an EPA penalty debt.  LNRD-EES will notify the EPA
attorney of record on the case (with a copy to the Assistant
Administrator of the Office of Enforcement) and offer an opportunity
to comment on any DOJ decision to suspend or terminate the debt.
Any decision affecting an EPA penalty (receivable) will be reflected
in the LNRD-EES quarterly updates to EPA as described in the EPA
Enforcement Reporting of the Status of Penalty Payments section of
this Chapter.

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                           3-A1-1                     APPENDIX  I



         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460

                           OCT  6
                                                         OFFICE OF
                                                       ADMINISTRATION
                                                       AND RESOURCES
                                                       MANAGEMENT
MEMORANDUM

SUBJECT:   Transfer of Responsibility for Superfund
           Accounts Receivable to the Regions

FROM:      Charles L. Grizzle
           Assistant Administrator

TO:        Regional Administrators


     On April 27, 1988, I sent a memorandum to you about
various initiatives being taken within the Agency to respond
to the Fiscal Year 1986 Superfund audit report.  One
initiative was to improve controls over Superfund accounts
receivable by placing responsibility for those receivables in
the regions.  I noted in my memorandum that we were developing
revised guidance, Financial Management of the Superfund
Program — 2550D, which would transfer this responsibility.

     I am pleased to report to you that the Agency's striped
border review of the guidance has been completed, and  the
final version of "2550D" is being delivered through the  standard
Agency distribution channels.

     As required by 25500, any new or amended Superfund  state
contract, settlement or any other agreement or order creating
amounts due EPA must now direct payment to the regional
lockbox address.  Further, the regional counsel, regional
program office, and regional financial management office
should implement the policies and procedures described in
2550D.

     Please ensure that your staff members fulfill their
responsibilities in this area.  As you know, our success in
Superfund cost recovery is being closely monitored.  Our
achievements in this area are measured by the amounts  actually
returned to the Trust Fund, and timely and accurate billings
are an essential link in the recovery process.

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RESOURCES MANAGEMENT DIRECTIVES
FINANCIAL MANAGEMENT OF THE SUPERFUND PROGRAM
REGIONAL SUPE3FUND LOCKBOX DEPOSfTORIES	
                                                   7/25/33
           REGIONAL  SUPERFUND LOCKBOX DEPOSITORIES
    FMQ
    Region 1
    Boston
    Region 2
    New York
    Regions
    Philadelphia
    Region 4
    Atlanta
    Regions
    Chicago
    Region 6
    Oaflas
    Region?
    Kansas City
    Regions
    Denver
    Regions
    San Francisco
    Region 10
    Seattle
LQCKBQX BANK


 Mellon Bank



 Mellon Bank



 Mellon Bank
 The Citizens and Southern
 •National Bank
 The First National Bank
 of Chicago
 MeBonBank
 M«Bon8ank
  Melon Bank
  MtttonBank
  Mellon Bank
   ADDRESS FOR
REMITTING PAYMENT
EPA • Region 1
Attn: Superfund Accounting
P.O. Box 360197M
Pittsburgh, PA 15251
EPA • Region 2
Attn: Superfund Accounting
P.O. Box 360188M
Pittsburgh, PA 15251
EPA - Region 3
Attn: Superfund Accounting
P.O. Box 360515M
Pittsburgh. PA 15251
EPA • Region 4
Attn: Superfund Accounting
P.O. Box 100142
Atlanta. GA 30384
EPA - Region 5
Attn: Superfund Accounting
P.O. Box 70753
Chicago. IL 60673
EPA • Region 6
Attn: Superfund Accounting
P.O. Box 360582M
Pittsburgh. PA 15251
EPA • Region 7
Attn: Superfund Accounting
P.O. Box 360748M
Pittsburgh. PA 15251

EPA-Region 8
Attn: Superfund Accounting
P.O. Box 360859M
Pittsburgh. PA 15251
EPA • Region 9
Attn: Superfund Accounting
P.O. Box 360863M
Pittsburgh. PA 15251
EPA-Region 10
Attn: Superfund Accounting
P.O. Box 360903M
Pittsburgh, PA 15251
                                   Appendix 2550D-3

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                                3-A2-1
CHAI
                                                       APPENDIX 2
                        inancial Management: Offices
EPA - Region I
JFK Fed Bldg Rm. 2203
Boston, MA  02203
FTS - 835-3339

EPA- Region II
JKJ Fed Bldg/26 Fed Plaza
New York, NY 10278
FTS - 264-8989

EPA - Region III
841 Chestnut Bldg
Philadelphia, PA  19107
FTS - 597-7805

EPA - Region IV
345 Courtland St., NE
Atlanta, GA  30365
FTS - 257-3278

EPA- Region V
230 South Dearborn Street
Chicago, IL  60604
FTS - 353-8923

EPA - Region VI
1445 ROSS Ave,
12th Floor Suite 1200
Dallas, TX 75202
FTS - 255-6550

EPA - Region VII
726 Minnesota Avenue
Kansas City, KS  66101
FTS - 757-2830

EPA- Region VIII
999 18th St., Suite 50
Denver, CO  80202-2405
FTS - 564-1617
EPA - Region IX
1235 Mission Street
San Francisco, CA  94103
EPA - Region X
1200 Sixth Avenue
Seattle, WA  98101
FTS - 399-2961

Headquarters Accounting
  Operations Branch
EPA (PM-226)
401 M St, SW
Washington, DC  20460
FTS - 382-5100

Headquarters Financial
  Reports and Analysis
  Branch
EPA (PM-226F)
401 M St, SW
Washington, DC  20460
FTS - 382 -5131

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                             3-A3-1

CHAPTER THREE	APPENDIX 3



        EPA ENFORCEMENT ACCOUNTS RECEIVABLE CONTROL NUMBER FORM

 TO BE FILLED OUT BY ORIGINATING OFFICE;
 (Attach a copy of the  final  order  and transmittal  letter  to
 Defendant/Respondent)

 This  form was originated by:  	 	
                              [Name of contact  person]     [Date]
 in the 	at  	,	
                  [office]                      [phone  number]

 I	1  Non-SF Jud.  Order/Consent    i	1  Administrative  Order/
 1	'  Decree.  USAO COLLECTS.       '	'  Consent  Agreement
                                       FMO COLLECTS  PAYMENT.
 i	1  SF Jud.  Order/Consent
 '	'  Decree.   FMO COLLECTS.

 '	'  This  is an original debt    '	'  This is  a modification

 Name  of Person and/or Company/Municipality making the payment


 The Total  Dollar Amount of Receivable  	;	
 (If in installments,  attach sch.  of amounts and respective due dates)

 The Case Docket Number
 The Site-Specific Superfund (SF)  Acct.  Number

 The Designated Regional/HQ Program Office   	
              )UT BY LOCAL FINANCIAL MANAGEMI^NT OFFICE;

 The IFMS  Accounts Receivable Control Number  _	

 If  you have any questions call:  	
                                   [Name of  Contact]      [Date]
 in the  Financial Management Office,  phone number:	
 JUDICIAL ORDERS:  Copies of this  form with an attached  copy  of  the  fror
 page  of  the final Judicial order should be mailed to:

 l.  Debt  Tracking  Officer                 2.  Originating  office (ORC)
    Environmental  Enforcement Section     3.  Designated Program Office
    Department  of  Justice/Rm.  1647D
    P.O.Box 7611,  Benjamin Franklin station
    Washington,  DC  20044

 ADMINISTRATIVE ORDERS:  Copies of this form with an attached copy of
 the front page of the administrative  order should be  sent  to:

 1.  Originating office                 2.  Designated Program Office
 3.  Regional Hearing Clerk            4.  Regional Counsel

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                                3-A3-2

CHAPTTTP T^Hf, ___ APPENDIX 3

                               GLOSSARY

Below are key terms for filling out the EPA Enforcement Payment
Account Receivable control Number Form.

EPA Originating Office - In the case of administrative orders, the
EPA office that originates and sends a copy of the signed final order
and the transmittal letter to the defendant/respondent is responsible
for filling out the top half of the Form.   In the case of Judicial
orders f the U.S. Attorneys' Office (USAO)  will in most cases be the
entity that sends a copy of the final (entered) order or consent
decree to the defendant with a transmittal letter.  By Directive,  the
USAO win send to the appropriate Office of Regional Counsel (ORC) ,  a
copy of the entered order and transmittal  letter.  Unless otherwise
designated in a Region, the ORC will be the EPA originating office
responsible for filling out the Form and sending a copy of the
entered order to the FMO.

Designated Regional Headquarters Pfogrgm Office - This is the Office
responsible for enforcing the statutory program (e.g. , CAA, CWA,
TSCA, RCRA, FIFRA, Superfund, etc.) that governs the violation.  The
designated program office is responsible for tracking the technical
(non-penalty) requirements of the order.  This program will use the
IFMS accounts receivable number to check with the FMO on the status
of payment of the administrative or judicial penalty.

Case Docket Number -  This is the number in the upper right hand
corner of the final order that is provided by the Regional Hearing
Clerk (administrative) or the Clerk of the Court (judicial).
Site-Specific Superfund Account: Nynfr^r - The ten digit number used in
the Superfund Program to identify a particular site so that monies
can be tied to specific sites and activities.

IFMS Accounts Receivable Control Number - When the FMO is provided
documentation (final order) on the creation of a debt, the FMO enters
the debt into the Integrated Financial Management System (IFMS) and
creates a n«w accounts receivable.  If there are several violators
under the saae case that will be making a payment, then each "payee"
receives a different control number.  The FMO will fill out a
separate copy of the Form for each payee and accounts receivable
control number.
The completed version of tne Form with the EPA Originating Office and
the FMO portions of the form filled in should be included in the
enforcement case official file as a record for audit purposes that
the final order was sent to the FMO and that an accounts receivable
control number was provided.

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CHAPTER THREE
                              3-A4-1

                                                           APPENDIX
                                     L.S. Department of Justice

                                     Land and Natural Resources Division
  Off.ce of the Aaiium Attonsy C«nmi               WatHington. O. C. 20530


                                     February  8,  1990


     MEMORANDUM

     TO:       All United States  Attorneys

     FROM:     Richard  B. Stewart /L/> fl^l^^'L^^
               Assistant Attorney General
               Land and Natural Resources  Division

               Laurence S.  McWhorter
               Director, Executive Office  F«r
                 United States Attorneys

     SUBJECT:  Distribution of Court-Approved Consent
               Decrees  Under Environmental Statutes

               The Inspector General of the Environmental Protection
     Agency has recently conducted an audit of the Agency's financial
     practices and procedures including its monitoring of consent
     decrees and court  judgments  relating  to the payment of civil
     penalties and the  collection of Superfund money.  As you know,
     while civil penalties  are collected by each of your collection
     units, Superfund monies are  payable to EpA's regional financial
     management divisions and are deposited in separate Superfund
     lockboxes.

               The Inspector General's  report severely criticized
     certain of the Agency's procedures noting that its ten regional
     financial Management divisions were not receiving file-stamped,
     court-approved consent decrees which  is the mechanism for
     creating *accounts receivable' at  the Agency.  One difficulty for
     the Agency is that consent decrees under environmental statutes
     must undergo a 30-day  public comment  period prior to final
     approval by the  district court.  In those cases where the
     proposed settlements result  in substantial public comment, the
     decrees may not  be finally approved for months after lodging.  In
     its report, the  Inspector General  directed the Agency to arrange
     for the receipt  of court-approved  consent decrees.  While EPA
     does not itself  collect civil penalties, the Inspector General is
     requiring the Agency to acquire all entered consent decrees, not
     just Superfund decrees.

                                                      Updated  2/22/90

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          Accordingly, on behalf of our client Agency, we are
requesting that each United States Attorney Office provide copies,
of file-stamped and court-signed consent decrees not only to this
Division's ^nyironmental Enforcement Section but to the
appropriate regional EPA office as set forth in the attached
mailing list.  Your cooperation in this endeavor is greatly
appreciated.

Attachment

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                                ATTACHMENT

                 MAILING LIST FOR SENDING COURT-APPROVED,
                    FILE-STAMPED CONSENT DECREEE UNDER
                          ENVIRONMENTAL STATUTES
               Copies of all court-approved consent decrees on behalf
     of the Environmental Protection Agency should be sent to the Land
     and Natural Resources Divison as follows:

                    Debt Tracking Unit
                    Environmental Enforcement Section
                    Land and Natural Resources Division
                    Department of Justice
                    10th & Pennsylvania Avenue, N.W.
                    Washington, D.C.  20530

               In addition, copies should be sent to EPA's regional
     office as follows:
u.s. ATTORNEY OFFICES LOCATED
IN THE FOLLOWING STATES	

Maine, New Hampshire,
Vermont, Mass., R.I., Conn;
N.Y., N.J., P.R./Virgin
  Islands
Pa., Del., Md., Va.,
W.Va., D.C.
N.c., S.C., Ga., Term.,
Ky., Fla., MiM., Ala.
111., Ind., Ohio, Minn.,
wis., Mich.
 SHOULD SEND DECREES TO THE
 FOLLOWING EPA REGIONAL OFFICE

Regional Counsel
EPA - Region I
JFK Bldg.
Rm. 2203
Boston, MA.  02203

Regional Counsel
EPA - Region II
26 Fed. Plaza
New York, NY  10278

Regional Counsel
EPA - Region III
841 Chestnut Street
Philadelphia, PA.  19107

Regional Counsel
EPA - Region IV
345 Courtland Street, N.E.
Atlanta, Georgia  30365

Regional Counsel
EPA - Region V
230 South Dearborn Street
Chicago, 111.  60604

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Tex., La., Okla., N.M.,
Ark.
Kan., Mo., Iowa, Neb.,
N.D., S.D.
Col., Utah, Wyo., Mont.
Cal., Ariz., Nev., Hawaii
Wash., Ore., Idaho, Alaska
- 2 -

 Regional Counsel
 EPA - Region VI
 1445 Ross Ave.
 12th Floor - Suite 1200
 Dallas,  TX.   75202

 Regional Counsel
 EPA - Region VII
 726 Minn.  Avenue
 Kansas City,  KS.   66101

.Regional Counsel
 EPA - Region VIII
 999 18th St.  -  Suite 50
 Denver,  CO.   80202-2405

 Regional Counsel
 EPA - Region IX
 1235 Mission Street
 San Francisco,  CA.   94103

 Regional Counsel
 EPA - Region X
 1200 Sixth Avenue
 Seattle, WA.  98101

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CHAPTER FOUR

ENFORCING FINAL ORDERS
Enforcing Administrate. veOrders
Each program has guidance for taking timely and appropriate
responses on violations of administrative orders.  Some programs
provide for the use of stipulated penalties to address certain types
of violations of administrative orders such as self-reporting.
Chapter Two, Collection of Administrative Penalties, provides
guidance on assessing and collecting stipulated penalties.  .

For violations of statutory or regulatory requirements such as permit
discharge limits, Agency policy is to escalate enforcement response
by issuing a second order with higher penalty assessments or by
filing a judicial case to enforce the order.  Judicial referrals to
enforce violations of administration orders require the development
of a litigation referral package and are referred to OE or directly
to DOJ depending on the statute and issues involved in the case.
Appendix l of this chapter describes the direct referral
requirements.

"Contractor Listing" which is described at the end of this'
chapter is available as an enforcement remedy for administrative
order violations under the CWA and CAA.  (Appendix 5 of this chapter
describes procedures for listing a violator.)


Enforcing Judicial Orders	


EPA may use a variety of actions to enforce violations of judicial
orders.  Any such response, however, must be prompt and firm to
reflect the importance the Agency attaches to such agreements.
Informal actions include warning letters and compliance conferences
with the violator.   Formal enforcement of judicial orders includes
modifications of the terms of an order, invoking stipulated
penalties, motions to enforce the decree, civil and criminal contempt
of Court motions, and contractor listing under the CAA and CWA.  The
Judicial Consent Decree Tracking and Follow-up Directive  issued in
January 1990 supplements this Manual's guidance and can be found in
Appendix 3 of Chapter One.  The April 18, 1984 Guidelines for
Enforcing Federal District Court Orders (GM 27), contained in
Appendix 2 of this chapter provides additional information on
judicial order enforcement.  This Manual supersedes any
inconsistencies between the April 1984 Guidelines and practices set
forth in this Manual.

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                                 4-2

CHAPTER FOUR	ENFORCING FINAL ORDERS


Modifications

Either the Federal government or the defendant can request that the
Court grant a modification to an existing order, or both
parties can jointly propose a modification to the court.
Modification of the existing terms of a judicial order must be
consistent with each program's gufdance on.what warrants granting the
defendant relief from the original terms of the order.

Modifications usually address circumstances which have arisen since
the entry of the consent decree (such as force maleure events or
other unanticipated circumstances).

Modifications require the signature of the Assistant Administrator
for OE and the Assistant Attorney General for the Land and
Natural Resources Division (LNRD)  of DOJ, consistent with the
requirements for the original decree.  Appendix 3 of this chapter
describes procedures for modifying judicial orders and obtaining OE
and DOJ concurrence.  Modifications approved by the court must be -
sent to the NEIC Central Repository, (see Chapter One).


Stipulated Penalties (Judicial Decrees)

Most judicial consent decrees contain provisions for stipulated
penalties (i.e., penalties that are agreed upon by the parties, at
the time of entering into settlement, as being payable in the event
that the defendant violates a provision of the decree).  Any
stipulated penalties in judicial orders or consent decrees, whether
automatic or upon notice, should be paid to the DOJ Lockbox.
Appendix 2 in Chapter One provides guidance concerning the use of
"automatic" versus "on demand" stipulated penalties in EPA settlement
agreements.

While LNRD has the overall responsibility for enforcing judicial
judgments and collecting outstanding penalties, DOJ rarely will know,
independently of EPA, when the underlying technical conditions of an
EPA consent decree have not been met.  DOJ relies on EPA to monitor
the technical requirements of an order and notify DOJ staff when
stipulated penalty provisions (automatic or on demand) have been
triggered.

Once DOJ has been informed that a stipulated penalty is due the
Federal government, DOJ has the responsibility and the prosecutorial
authority for collecting and resolving any controversies over the
payment of the penalty debt.  As with the initial litigation
governing the consent decree, LNRD works with EPA on developing

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                                 4-3

CHAPTER FOUR	ENFORCING FINAL ORDERS


the documents to collect stipulated penalties and keeps EPA informed
on the status of the action.  Appendix 4 of this chapter describes
the procedures for informing DOJ that a stipulated penalty provision
has been triggered.


Motions to Enforce the Consent Decree and Contempt of Court

For serious violations of a settlement agreement, the Agency may
seek to enforce the terms of the agreement by requesting that
LNRD file a "Motion to Enforce the Judgment".  Such a motion is
filed with the same court that had originally issued the consent
decree and requests the court to exercise its authority to ensure
compliance.

A Motion to Enforce the Judgment may assert that the defendant
has failed to comply with the consent decree provisions that relate
to the agreed-upon compliance schedule or operation and maintenance
requirements and that no provision of the decree for
excusing noncompliance (e.g., a force majeure clause) is applicable.
The motion may also request that the court compel payment of any
unconnected stipulated penalties.

A Motion to Enforce a Judgment may be accompanied by a "Motion to
Show Cause Why Defendant Should Not Be Held In Contempt".  Such
a contempt motion  is usually reserved for the most serious viola-
tions of a consent decree (e.g. willing and knowing violations).  The
ORC should request DOJ assistance on filing the above motions through
the direct referral process outlined in Appendix 1 of this chapter.


Contractor Listing (Air and Water Violations Only)

EPA has the authority to prohibit a facility from participating in
Federal contracts, grants or loans, where that facility has a record
of continuing or recurring noncompliance with clean air or
clean water standards, and where that facility is subject to a
prior or ongoing enforcement action.  Established guidance on the
use of this authority notes that violations of judicial consent
decrees, administrative orders and notices of noncompliance are prime
examples of cases where the "contractor listing" prohibition should
be strongly Considered.  (See "Guidance on Implementing
the Discretionary Contractor Listing Program", November 26,
1986).  This is an administrative procedure and does not require Mi«?
assistance or concurrence of DOJ.  However, if the case has been
filed or referred to DOJ for filing, EPA should notify DOJ before
initiating or disposing of a contractor listing action.

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                                 4-4
CHAPTER FOUR
ENFORCING FINAL ORDERS
Procedures for listing a violator are set forth at 40 C.F.R.
Part 15. OE has designated a "Listing Official" to implement the
process required by 40 C.F.R. Part 15.  Listing actions are formally
commenced by submitting to the Listing Official a "Recommendation to
List" which has been signed by either the Regional Administrator, the
OE Associate Enforcement Counsel for Air or Water, or the Assistant
Administrator for Air and Radiation or Water.  Appendix 5 of this .
chapter describes the process for submitting a "Recommendation to
List".

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  '                     4-A1-1
  \                                  	
   |     UNITED STATOCMVmONMEIfTALniOTICTION

                               OCIMM
                       MV2BB3
MEMOSANLUM

SUBJECT: Implementation of Direct Isfsrrsls for Civil  Cases
          Beginning December 1, 1913      /n

FROM:    Courtney M. Pric«(J^u3l«V ^' ***u^
         Assistant Administrator fod Enforce ant
          and Compliance Moniteriaf

TO:      Jtegional Administrators, Regions I - I
         Etg ionml Croat «li, 
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                             -2-

      Many of the procedures for direct referral caaes are
 adequately explained in the September 29th agreement.
 However, there are some points' I want to emphasise*

      Referral packages should bs addressed to Mr.  7. Henry
 Habicht. II. Assistant Attorney General,  Land and  Natural
 Resources Division, U.S. Department of Jus tics), u*«h<*gt"TB.
 D.C. 20530, Attention: Stephen D.  Kamsey,  The time limitations
 set forth in the agreemect for review and initial  disposition
 of the package will commence upon  receipt of the package in
 the Land and Natural Resource* Division,  end not at the DOJ
'mailroom.  Delivery of referral packages  to the Land and
 Natural Resources Division will be expedited by use of
 express wall, which ia not commingled with regular mail  la
 DOJ's mailroom.

      The contents of a referral package (either direct to
 DOJ or to EPA Headquarters)  should contain three primary
 divisions:  (1)  a cover letter; (2) the litigation  report;
 (3)  the documentary file supporting the litigation report.

      The cover letter should contain a summary of  the following
 elements:

    . (a) identification of the prop'osed defendant(s);
                                             0

      (b) the statutes and regulations which are the basis
          for the proposed action against  the defendant(s);

      (e) a  brief e tat em en t of the  facts upon which the
          proposed action is  based;

      (d) proposed relief to  be sought against the  defendant(s);

      (e) significant or precedential legal or factual issues;

      (f) contacts with the defendant(e),  including ear
          previous administrative enforcement actions taken;

      (g> lead Regional legal and technical personnel;

      (h> any other aspect of the ease which ia significant and
          should be highlighted, including any extraordinary
          resource demanda which the ease  may require*

      A referral to DQJ or to Headquarters ZPA is tantamount
 to a certification by the Region that it  believes  the case
 is sufficiently developed for the  filing  of a complaint,
 and that the Region ia ready, willing and able to  provide
 such legal  and technical support ae might be reasonably
 required to pursue the caae through litigation.

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     As provided in the September 29, 1983. agreeaent,
information copies of the referral package aay be provided
to the U.S. Attorney for the appropriate judicial district
in which the proposed case aay be filed.  These information
packages should be clearly labelled or stamped with the
following words: "Advance Copy — Mo Action Required At
This Tine".  Also, information copies should be siaultaneoualy
provided to the appropriate OECM division at Headquarters.
It is important that the directly referred cases be tracked
in our case docket system and Headquarters oversight initiated.
Copies of the referral cover letter vill be provided to
OZCM's Office of Management Operations for Inclusion la the
automated case docket systsm when Headquarters informational
copy ie received at OECM'a Correspondence Control Unit.

Departaent of Justice Responsibilities

     DOJ shares our desire to handle these eases aa expedl-
tloualy ae possible.  To that end, DOJ has agreed taat,
within thirty dame of receipt of the package la the Land ead
Natural Reeourcee Divieloa at DOJ Headquarters, it will
determine whether Headquarters DOJ or the U.S. Attorney
will have the lead litigation responsibilitier on a specific
case.  DOJ will notify the Regional offices directly of its
determination in this regard, with a copy to the appropriate
OECM division.  Although USA offices will haver lead respon-
sibilities in1 many casee,.the Land and Natural Reeourcee
Division will continue to have oversight and management
responsibility for all cases.  All complaints ead eonaeat
decrees will continue to require the approval, of the
Assistant Attorney General tor the division before the caae
can be filed or settled.  .

     DOJ haa reaffirmed the time frame of the Memorandum
of Understanding, dated June IS, 1977, for the filing of
cases within 60 days after receipt of the referral package,
where possible.  Where it la act possible, DOJ will advise
the Region and Headquarters of any reasons for deleye la
filiag of the case.  However, when DOJ determines that
the USA should have the lead responaibilitims in a ease, DOJ
will forward the ease to the USA within thirty daye of
referral to the extent feaaible.

     DOJ can requeet additional information from a Region
on a caae or return a ease to a Region for further develop*
oent.  In order to avoid these delays, referral packages
should be as complete aa possible and the Regions should
work closely with DOJ to develop referral packages).

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     The  Deputy Adainiatrator ha*  cxpreated  concern in the
 patt on tha nuaber of  catet returned to cha Region* or
 declined  by EPA or DOJ.  I have attured the Deputy Administrate
 chat I will clotely track the nuaber of cate* declined by
 DOJ or returned to the Region* and the reaaon* for the
 declination or return  a* indication* of whether direct
 referral* are a feaalble aethod of handling EPA'a judicial
 enforceaent prograa.

 Headquarter* OECM Responsibilitiea

     Although OECM will not formally concur on eaeae directly
 referred  to DOJ. OECM will etlll review thete package* and
aay offer content* to  the Region* and DOJ.  DOJ ia free to
 requeat EPA Headquarter* aa*i*tance on caaea. aa DOJ
believe* nece**ary.  EPA Headquarter* review will help to
point out potential ittuea ana pinpoint area* where future
guidance ahoold be developed.  OECM will alto ba available
a* a consultant to both DOJ and tha Regiont on thete caaea.
OECM will be available to add ret* policy ittue* a* they
ariae and, aa resource* pernit, aay be able to attitt ia
caae development or negotiation of the*e caaea.  Any requeat
froa a Regional offica for Headquarters legal aatittanca
•hould be ia writing froa tha Regional Adainlstrator to
ne, tetting forth tfca reason* for eaa reqmett and the type
of aaaiatanca needed.

     OECM alao aaiatain* aa oversight responsibility for
thete caeea.  Therefore, Retional attorney* am*t report
the status of these caae* on a reaular baaia through "use
of the autoaated caae docket.  All information tor tne caae
required oy tae caae dodcet~tyttea auat appear in the
docket and ba updated in accordance with currant guidance
concerning tha autoaated docket ay*tea.

Settleaent* ia Caaea Subject to Direct Referral

     I will continue to approve and execute all tettleaentt
ia enforcement caaea. including thoaa in caaea *ubject to
direct referral and amendment* to concent deereaa in thete
caaea.  Thi* it necettary to ensure that Agency policies and
enforceaent activities are being uniformly and consistently
applied nationwide.  After the defendants have eigned the
settleaent. tha Regional Adaini*tracer should forward a
copy of tha settlement to aa (or ay designee) with a written
analysis of tha eettleaeat aad a requeat that tha aettleaent
be signed and referred for approval by the Assiscane Attorney
General for the Land and Natural Resources Division and for
entry.  The aettlement will be reviewed by the appropriate
OECM Enforcement Diviaion for consistency with law aad
Agency policy.

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                            -5-

     Vithin twenty-one days from the date of receipt of the
settlement by the appropriate OECM division, 2 will either
sign the settlement and transmit it to DOJ with a request
that the settlement be entered, or transmit a memorandum to
the Regional Office explaining factors which Justify post*
poneaent of referral of the package to DOJ, or return the
package to the Region for changes necessary before the
agrees en t can be signed.

     Obviously, we want to avoid the necessity of
cconunicating changes in Agency settlement positions to
defendants, especially after they have signed a negotiated
agreement.  To avoid this, the Regional office should
coordinate with Headquarters OECM and DOJ in development of
settlement proposals.  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.  The Associate
Enforcement counsel will coordinate review of the settlement
with the Headquarters program office and respond to the
Regional office, generally, within ten days of receipt of
the draft.  The Regional: off ice should remain in contact
with the Headquarters liaison staff attorney as negotiations
progress.  Failure to coordinate settlement development
with appropriate Headquarters offices may result in rejection
of a proposed settlement which has been approved by the
defendant(a) and the Regional office*

     I will also continue to concur in and forward to DOJ
all requests for withdrawal-of cases after.referral.  In
addition, I will review and concur in any delay in the filing
or prosecution of s case after referral.  This is appropriate.
because caaes which arm referred to DOJ should be expeditiously
litigated to conclusion, unless a settlement or some other
extraordinary event Justifies suspending court proceedings.
The review of reasons for withdrawal or delay of cases
after expenditure of Agency 
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     Within  thii  twenty-one day period, OECM will decide
whether  to refer  the  caae  to DOJ  (OECM then hat fourteen
Additional daye to fora ally ref.er the eaee), to return the
case to  the  Region for further development, or to requeat
additional info mat ion froa the Region.

     Because of this  
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  S       UNITED STATES EN'«flRO:JM£K7Ai. PaOTTCTiOt; AS
Honorable P. Henry Rabicht, XX
Acting Aaaiatant Attorney General
Land and Natural Resources Aivisiea
U.S. Department of Justice
Washington, D.C.  20530

Dear Banki
                 ..      _ •                . *
     As a result of our meeting on Thursday, September •,*
and the aubsequent discussions of respective stsffs, we are in
agreement that, aubject to the conditions set forth below, the
classes of esses listed herein will be referred'directly from
EPA'a Regional Offices to the Lend and Natural Resources Division
of the Depcrtatent of Justice in C?cshiag*en* D.C.

     The terms, conditions and procedures to be followed in
implementing this agreement arei

1.   The Assistant Administrstor for Enforcement and Compliance
     Monitoring will waive for a period of one year the requirement
     of the Assistant Administrator*s prior concurrence for referral
     to the Department of Justice for the following claases of
     judicial enforcement essess

     (s)  Cases under Section 1414(b) of the Safe Drinking Mater
          Act which involve violations of the National Interim
          Primary Drinking water Regulations, such ss reporting or
          monitoring violations, or maximum contaminant violations!
     (b)  The following eases under the Clean Water Acts
                                                •
          Cil    eases involving discharges without a permit
                 by imdustrial discharger* f

          (ii)   sll esses against minor industrial dischargers!

          (iil)  essos* involving failure to monitor or report by
                ' industrial dischargers!

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                 rtftrraU to collect stipulated penalties f
                 industrials under consent decrees;

           (w)    referrals to collect administrative spill penalties
                 under Section 31KJ) of the CWAf          *-•»•*«••

     (c)  All cases under the Clean Air Act except the following*

           U)    cases involving the steel industry*

           (ii)   cases involving non-ferrous shelters?
       •.  .                                  •                  •
           (ill)  eases involving National Missions Standards for
                 Hazardous Air Pollutants?  -

          (iv)   cases involving the post-lil2 enforcement policy.

2.   Cases described in Section 1, above* shall be  referred
     directly from the Regional Administrator to the Land and
     Natural Resources Division of MJ la the following Banners

     (a)  The referral package shall be forwarded to the  Assistant
          Attorney General for Land and Natural R«sources* O.S.
          Department of Justice (DOJ)* with  copies  of the package
          being simultaneously forwarded to  the V.S. Attorney .
          (OSA) for the approprlste judicial district in  which
          the proposed case is to be filed (Barked  'advance copy-
       .  no action required at this time*)* and the Assistant
          Administrator for Enforcement and  Compliance Monitoring
          (OCCM) at EPA Seadquarters.  OECM  shall have the following
          functions with regard to said referral packages
                                     *
          (i)    OtCM shall have no responsibility  for review of
                 such referral packages* and the referral shall bm
                 effective as of the date of receipt of the package
                 by OOJt however* OECN shall comment to the Region
                 upon any apparent shortcomings or  defects which
                 it may observe in the package. MJ may*  of  course*
                 continue to consult with OECN on such ref errals.
                 Otherwise* OECM shall be responsible only for
                 routine) oversight of the progress  and management
                 of the case consistent with applicable present
                 and future guidance.  OECM  shall*  however* retain
                 final authority to approve  settlements on behalf
                 of If A for these cases* aa  la other eases.

          (ii)   The referral package shall  he in the format  and
                 contain information provided by guidance memoranda
                 as may be promulgated from  time to time  by OECM  in
                 consultation with DOJ and Regional representatives.

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           (ill)  DOJ shall, within 30 days from receipt of tha
                 rtftrral package, determine (1) whether tht Lands
                 Division of DOJ will haw laad responsibility for
                 tha eaaej or (2) whether tha OSA will hava laad
                 responsibility for the caaa*
                          i...
                 Hhilt it is agraad that to the extent feaaible,
                 easas la wfeica the OSA wiJJ havo tha laad will ba
                 tranaaittad to tha DSA for filing and handling
                 within this 30-dsy period, if OOJ determines that
                 tha eaaa requires additional lagal or factual
                 development at DOJ prior to referring tbo matter
                 to tha OSA, tha eaaa may ba raturnad to tha
                 Regional Office, or Bay ba ratainad at tha Landa
                 Division of DOJ for furthar development, including
                 raquaating additional information Iron tha Kagional
                 Office.  In any ovant* DOJ will notify tha Xagioaal
                 Offiea« OECH and tha OSA of its determination of
                 tha laad rola within tha abov»*s«ationad 10-day
                 pariod.

           (iv)   Kegardlaas of whathar DOJ or tha OSA la detarainad
                 to hava laad rasponaibility for aumagaaant of
                 tha casa* tht procaduras and tis» limitations sat
                 forth in tha MOO and 21 CFX fO.CS at aaq., ahall
                 ramain in affact and ahall run concurrently with*
                 tha managamant datarminationa mada pursuant to
                 this agreement.

3.   (a)  All othar easss not specifically described in paragraph
          1, above, which the Regional Offices propose for judicial
          enforcement shall first ba forwarded to Of CM sad the
          appropriata laadquartars program off ica for reviaw.
          A copy of the referral package shall be forwardad simul-
          taneously by tha Regional Off ica to tha Lands Division of
          DOJ and to tha OSA for tha appropriata judicial district,
          tha OSA's copy being marked •advance copy-no action required
          at this tis»«*  .

     (b)  OCCN shall review tha referral package within twenty-ona
          (21) calendar daya of tha data of receipt of aaid package
          from tha Regional Administrator and shall, within aaid
          time pariod, make a determination of whether tha eaae
          should be (a) formally referred to DOJ, (b) ratumed to
          the Regional Administrator for any additional development
          which may bo required! or (cl whathar tha Regional
          Adminiatrator should ba requested to provida any additional
          material or iaformation which may ba required to aatiafy
          the necessary and aaaantial legal and factual requirements-
          for that type of caao*

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      (c)   Any request for information, or return of the —-t
           to the ftegion shall be transmitted by appropriate letter
           or memorandum signed by the AA for OCCH (or her designed I
           within the aforementioned twenty-one day period.  Should
           OICM concur ia the proposed referral of the case to &oj,
           the actual referral shall be by letter from the AA for
           OCON (or her designee) signed within fourteen days of
           the termination of the aforementioned twenty-one day
           review period*   Copies of the letters referred to herein
           shall  be seat to the Assistant Attorney General for the
           Lands  Division of  DOS.
   •**.
      (d)   Open receipt of the referral  package  by DOJ*  the
           procedures and  time deadlines set forta in paragraph
           Mo.  I  of the HOC shall apply.

      In order to allow sufficient time prior to implementation of
this  agreement to make the O.S.  Attorneys* the Regional Offices
and our ataffa aware of these provisions*  it is agreed that this
agreement  shall  become effective December 1* If13.  Courtney Price
will  distribute  a memorandum within EPA explaining this agreement
and how it will  be implemented within the Agency.  (You will receive
a copy.)
                ^              ' •
      2 believe that  this  agreement will eliminate the necessity of
formally amending the Memorandum of understanding between our
respective agencies,  and  will  provide necessary experience to
ascertain  whether these procedures will  result  in significant  -
savings of time  and  resources.   In that regard* 2 have asked
Courtney to establish criteria for measuring the efficacy of this
agreement  during the one year trial period* and I aak that you
cooperate  with her in providing  such reasonable and necessary
information as she may request of you in making that determination.
At the end of  the trinl period—or at any time in the interval—
we may propose such adjustments in the procedures set forth herein
as may be  appropriate based on experience of all parties.

      It is further understood  that it is the mutual desire of the
Agency and DOJ that  cases be  referred to the OJA for filing as
expeditiously as possible)*'
                »      •»•
      I appreciate your cooperation in arriving at this agreement.
If this masts with your approval* please sign the enclosed copy
in the spasm Indlcatad below and xaturn the copy  to mm for our
filas.       •        , .   .
                                    Sincerely yours
                                          L. Aim
                                    Deputy Administrator
Appro
F. Benry Hf&icnt, ZZ
Acting Assistant Attorney
Land and Natural Resources Division
U.S. Department of Justice

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        3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
        f                WASHINGTON, DC. 20460
   """*                   APR 18  B64
                                                          0*MCIO«
                                                         U*O*CIMf NT AND
                                                       CQM>ll»lU MOMITO«IMG
MEMORANDUM
SUBJECT:  Guidelines for Enforcing  Federal_District Court Orders
FROM:
          Courtney M. Price (_faJ^.  /nfrfficc*
          Assistant Administrator for Enforcement
            and Compliance Monitoring
TOs       Assistant Administrators
          General Counsel
          Inspector General
          Regional Administrators
          Regional Counsels.
     Attached please find the most recent addition to the General
Enforcement Policy Compendium entitled 'Guidelines for Enforcing
Federal District Court Orders in Environmental Cases.'  The
document emphasizes the very high priority we attach to preserving
the integrity of court orders to enable the Agency to maintain its
credibility with the courts* the public, and the regulated community
so as to achieve environmental objectives.  If you have any
questions concerning this guidance* please contact Glenn Unterberger,
Director of the Office of Legal and Enforcement Policy.  He may
be reached at (FTS) 382-4541.
Attachment
cct  Assistant Attorney General for Land and Natural Resources
     Chief* Environmental Enforcement Section* DOJ

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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.

Policy

    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.
    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.
I/ 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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                               -2-


Draftinq Orders to Ensure Enforceability

     EPA -hould 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 cnforccability.  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* ftoo-
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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                                -3-


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 -Ivays 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 prevision
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 ihe 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 sore serious incentive to comply.

     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 seed 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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                               -4-


     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
noncomplylag 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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                                -5-


     All responses must require compliance with  the  order's
terms as quickly as possible.  Th.s requirement  includes  initiatio
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 must remove any appreciable
economic benefit accruing to the violator.  In addition to recouping
economic benefit, the penalties should reflect the recidivistic
or recalcitrant behavi6f%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  whVch
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
majeure 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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                               -6-


response.  Factors to be considered in determing the appropriate-
ness of criminal sanctions includet  (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 noncorepliance 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 tte 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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                               -7-


make clear to the defendant that the government requires such
signatures to legally bind the United States notwithstanding
recommendations 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.
                                  Courtnf^ M. Price
                             Assistant Administrator for
                         Enforcement and Compliance Monitoring

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                                4-A3-1


CHAPTER
           FOR MODIFYING JUDIC]
Definition

Consent decree "modifications" are changes to a consent decree
proposed jointly to the court by the Federal government and a
defendant, largely to address circumstances which have arisen since
the entry of the consent decree (such as force maieure events or
other unanticipated circumstances).  Thus, these "modifications" are
distinct from Federal government unilateral enforcement actions
requiring the violator to comply with the terms of the decree and
imposing sanctions.  Consent decree modifications should be addressed
as follows:
Concurrence Process

    o  As soon as the need to modify a consent decree is  discovered,
       the Region should send a letter to the appropriate OE-AEC and
       DOJ-Environmental Enforcement Section Chief notifying them of
       the intent to open negotiations with the defendant. The letter
       should contain summary information sufficient to apprise OE
       and DOJ of relevant facts, issues, and proposed solutions.

    o  Consistent with appropriate consultation procedures with OE or
       DOJ, the Region (along with OE or DOJ, as appropriate) may
       proceed to negotiate a modification of the consent decree in
       the manner described in the letter.

    o  OE retains authority for approving any modifications on behalf
       of EPA unless the underlying settlement authority of the
       original order has been delegated to the Regions.  If
       delegated, then the modification does not bring the settlement
       within the scope of OE authority.  DOJ retains authority for
                 any modifications on behalf of the United States.
       AftoflBl and DOJ officials have approved the modifications,
       the H^attorney will present the proposed consent decree
       modification to the appropriate court for approval.

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                                4-A3-2

CHAPTER FOUR      	APPENDIX 3


STARS Consent Decree Tracking Measure

A consent decree violation handled through modification  will be
considered addressed under the STARS consent decree tracking
measure when a modified consent decree is signed by the AA-OE
(or, in the case of delegated settlements, the Regional
Administrator) and-the appropriate* DOJ manager.   Until these
officials approve the modif ication,_ the Region will report the
consent decree in the "in violation with action planned" category.

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                                 4-A4-1

CHAPTER FOUR	APPENDIX 4


         PROCEDURES  FOR NOTIFYING DOT OF  STIPULATED PENALTIES


The procedure described below will be used for notifying the
Department of Justice (DOJ) Land and Natural Resources Division
(LNRD) of the need to initiate the collection of stipulated
penalties.  DOJ has the authority and responsibility to enforce
judicial judgments and can also initiate collection of stipulated
penalties without EPA's notification or request.  However, DOJ rarely
win know, without EPA notification, of the occurrence or non-
occurrence of a specified event that triggers a stipulated penalty
provision.


Definition

Stipulated penalties are penalties agreed to by the parties to a
consent decree for violation of the agreement's provisions.  These
penalties are made a part of the. consent decree and are enforceable
if violated.


Notification Process

Unless the consent decree specifies otherwise, notification to
defendants on the collection of stipulated penalties should be
sent by DOJ-LNRD.  Unless the consent decree specifies otherwise, all
judicial stipulated penalties should be paid to the DOJ lockbox.
The following procedures apply for enlisting DOJ's assistance:

    o  The Region sends a letter to DOJ  (copy to AA-OE) requesting
       DOJ to pursue collection activities.  The letter to DOJ should
       contain summary information sufficient to apprise DOJ of
       relevant facts, issues and proposed solutions.

    o  DOJ copies the Region and AA-OE with a copy of the notice
       letter sent to the defendant and any response to the notice
       letter.

    o  If the response is unsatisfactory, the Region will send a
       direct referral package to DOJ (copy to AA-OE).  The referral
       package should request that DOJ enforce against the unresolved
       consent decree violations, include any relevant new

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                                 4-A4-2

CHAPTER  FOUR	APPENDIX 4


       information  arising  since the notice letter request, and
       specify  the  extent of  the relief which EPA wishes to pursue.

    o  DOJ  takes  appropriate  action to enforce the original consent
       decree with  full  participation by the Region.

    o  When the defendant automatically pays stipulated penalties to
       the  Federal  government through any means,  including J:he DOJ or
       EPA  lockbox  systems, the  RPO,  or the ORC,  the  office"receiving
       the  payment  should immediately send a copy to  the ORC,  AA-OE,
       DOJ-LNRD and the  EPA Local  Financial Management  Office  (FMO).
       This inclucSIr  the U.S.  Attorneys'  Offices.


'STARS CONSENT DECREE  TRACKING MEASURE
       -           "^	 -L-n--^ -_ae__  ^*  —•"" " -^^                      ^

Under the STARS consent  decree tracking measure,  a demand letter or  a
notice to the defendant  to  pay a stipulated penalty is  not considered
a "formal enforcement response".  A penalty payment must De receive'd
or a direct referral  package  sent  to DOJ (copy to OE) before"the
violation is considered  addressed.   Where a demand or notice  letter
has been sent,  the  Region should report the decree in the. "ifl
violation with  action planned" category.   When a  direct referral is
sent to DOJ to  address the  non-payment of a stipulated  penalty,  the
Region should report  the decree  in the "in violation  with action
commenced"  category.

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                                4-A5-1

CHAPTER FOUR	,	APPENDIX 5
CONTRACTOR LISTING IN CASES OF NONCOMPLIANCE WITH ADMINISTRATIVE OR
JUDICIAL ORDERS
Guidance

EPA has authority to prohibit facilities which have a record of
continuing or recurring noncompliance with Clean Air Act or Clean
Water Act standards, and which are the subject of a prior or
ongoing enforcement action, from participating in federal contracts,
grants, or loans.   (Clean Air Act §306, Clean Water Act §508,
Executive Order 11738, 40 CFR Part 15).  Established guidance on the
use of this authority notes that violations of consent decrees,
administrative orders, and notices of noncompliance are prime
examples of cases where this prohibition, referred to as "Contractor
Listing", should be strongly considered (See "Guidance on
Implementing the Discretionary Contractor Listing Program", November
26, 1986).


Procedures

The process for listing a violator, set forth at 40 CFR Part 15 and
in the November 26, 1986 Guidance, should begin with a determination
that the "continuing or recurring noncompliance" involves clearly
applicable Clean Air Act or Clean Water Act standards.  If there is a
pending judicial action against a party, such as an outstanding
consent decree, there should be coordination with the appropriate DOJ
attorney to ensure  that the listing proceeding will not compromise
the litigation posture and will complement a motion to enforce the
decree.  The listing action can then be formally commenced by a
"Recommendation to  List" signed by a Regional Administrator, the AEC
for Air or Water, or the Assistant Administrator for Air and
Radiation or Water  and sent to the Listing Official in OE.  The
recommendation must include:
 (1)  The naaft, address, and telephone number of the Recommending
     Person.

 (2)  A description of the facility in question and its owner or
     operator.

 (3)  A description of the alleged continuing or recurring Clean Air
     Act or Clean Water Act noncompliance and the evidence thereof.

 (4)  A description of the prior or ongoing enforcement action against
     the facility (such as an outstanding consent decree or
     administrative order).

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                               4-A5-2

CHAPTER FOUR	      	        APPENDIX 5
If these requirements are met, the Listing Official notifies the
facility of the recommendation and transmits it to the Assistant
Administrator for Enforcement.  The owner or operator of the facility
then has 30 calendar days to request a listing proceeding.  If such a
request is made, EPA and the requesting person may present oral or
written evidence relevant to the proposed listing to an appointed
Case Examiner at an informal proceeding, "without formal rules of
evidence or procedure", and the Case Examiner decides whether or not
to list the facility.  If-the Case Examiner decides to list" the  ""
facii4ty, the owner or operator may ask the General Counsel to review
the Case Examiner's decision.  The General Counsel's decision would
then constitute final Agency action.  If there is no request to
present evidence, the Assistant Administrator for Enforcement the
matter.  These procedures and the provisions for review of a li-sting
decision are set forth at 40 CFR Part 15.

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OR.2-2

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       Tsl
        8 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON. D.C. 20460
                          APR  18 B84
                                                         IM»0«C(MINT AND
                                                       COMnMNCS MOWTOMNC
MEMORANDUM

SUBJECT:  Guidelines  for  Enforcing  Federal  District Court Orders

FROM:     Courtney M. Price dct-JCT rTToicL*
          Assistant Administrator for  Enforcement
             and Compliance Monitoring

TO:       Assistant Administrators
          General  Counsel
           Inspector General
          Regional Administrators
          Regional Counsels


      Attached please  find the most  recent addition to the General

Enforcement Policy Compendium entitled "Guidelines for Enforcing

'Federal  District Court Orders in Environmental Cases."  The

document  emphasizes the very high priority we attach to preserving

the  integrity of court orders to enable the Agency to maintain its

credibility with the  courts, the public, and the regulated community

so as to achieve environmental objectives.   If you have any

questions concerning  this guidance, please contact Glenn Unterberger,

Director of the Office of Legal and Enforcement Policy.  He nay

be reached  at (FTS) 382-4541.

Attachment

cc:   Assistant Attorney General for Land and Natural Resources
      Chief, Environmental Enforcement  Section, DOJ

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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
•re 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.

Policy

    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 lavs or regulations.  It
also covers the following areas:

       — Drafting court orders to ensure enforceability.l

       — Selecting responses to violations of consent decrees
          and other court orders.

       — Considering other procedures in implementing an
          enforcement response.
I/ 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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                               -3-


thc 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 oust 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 jnechanisms 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.

     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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                               -4-


     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.
                      • \tf
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 notion
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 nay 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 nust assess the
resource implications of the enforcement response.

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                               -5-


     Xll 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 must 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
majeure 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. § 401(3)
in situations of aggravated noncompliance with consent decrees
for which punishment is a legitmate objective of an enforcement

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                               -6-


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 Bust
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.  Zf no satisfactory
agreement is possible, EPA must still fulfill its mandate to enforce
environmental lavs.  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 oust
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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                               -7-
nake clear to the defendant that the government requires such
signatures to legally bind the Dnited States notwithstanding
recommendations 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.
                                  Courtney M. Price
                             Assistant Administrator for
                         Enforcement and Compliance Monitoring

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FF.1

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FF.1-1

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                                               pp. i
GM - 25, was revised in November  1988.  The old version
has been deleted and relevant excepts of the new docu-
ment have been put in its place in the manual.  A
complete copy of the strategy can be obtained  from the
Office of Federal Activities.

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EPA
United States
Environmental Protection
Agency
Office of
Federal Activities
Washington, D.C.
EPA/00 FA 88-001
November 1988
                                  Pfi H
         Federal Facilities
       Compliance  Strategy

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      Federal Facilities
    Compliance Strategy
     Office of Federal Activities

U.S. Environmental Protection Agency
         November 1988

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•••*
   >
    ,

          UNITED STATES ENVIRONMENTAL PROTECTION  AGENCY
                             WASHINGTON. D.C.  20460

                                                              NGN    8
                                                           THE ADMINISTRATOR
 The U.S. Environmental Protection Agency (EPA) believes that Federal agencies have an
 inherent obligation to comply with all Federal environmental statutes in the same manner
 and degree as all other regulated entities.  It is imperative that every effort be made to
 ensure that Federal facilities achieve  and maintain high rates of compliance with all
 environmental requirements. And it is important to EPA's compliance and enforcement
 efforts at non-Federal entities that facilities of the Federal government demonstrate that they
 have their "own house in order."  In order to demonstrate EPA's commitment  in  mis
 important area, we have established a new goal for our Federal Facilities Compliance
 Program which states that EPA shall help "ensure that Federal agencies achieve compliance
 rates in each media program which meet or exceed those of major  industrial and major
 municipal facilities."

 To help achieve this goal EPA has developed a new Federal Facilities Compliance Strategy
 which establishes a comprehensive and proactive approach to achieving compliance at
 Federal facilities. This document, also known as the "Yellow Book", provides the basic
 framework and consistent guidelines for all EPA media  programs (e.g., air, water,
 hazardous waste, etc.) to follow in their compliance and enforcement activities at Federal
 facilities.  It  also attempts to reconcile EPA's dual responsibilities to provide technical
 assistance and advice to Federal facilities pursuant to Executive Order No. 12088, and our
 statutory authorities  to take enforcement actions for  violations at Federal facilities in
 appropriate circumstances.

 Recently-authorized environmental statutes have included special  requirements  and
 additional provisions which are specific to Federal facilities. These provisions clarify that
 Federal agencies must comply with environmental laws in the same manner and degree as
 all other facilities subject to such requirements. EPA intends to utilize the full range of its
 available enforcement authorities to ensure compliance by Federal  facilities.  However,
 EPA also recognizes that there are some limitations and  differences in the types of
 enforcement actions which EPA can take at Federal facilities.  These special circumstances
 have made it clear that if EPA is to be truly effective in ensuring high compliance rates at
 Federal facilities, a separate strategy such as this is needed to address this unique subset of
 facilities which we regulate.

 Thorough and consistent implementation of this Strategy should significantly strengthen
 EPA's compliance and enforcement program for Federal facilities. We will apply the same
 timeframes for taking enforcement action at Federal facilities as  EPA does for other
 facilities.  We also have established a formal dispute resolution process with strict time
 periods for  escalation when Compliance Agreements or  Consent  Orders  cannot be
 expeditiously negotiated between EPA Regional offices and Federal facilities.

 This Strategy also emphasizes the use of innovative compliance management techniques
 (e.g., environmental auditing), selected initiatives for  improved compliance tracking of
 Federal facilities and more effective use of the Federal Agency A-106 Pollution Abatement

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Planning Process.  la addition, since many of EPA's programs are delegated to the States,
we have devoted  a separate chapter in this document to the critical role of States in
responding to compliance problems at Federal facilities.

In closing, I would like to reiterate that EPA is very serious in its efforts to ensure
compliance by Federal facilities, and we will take all necessary actions, including
enforcement in appropriate circumstances, to improve the environmental status of facilities
of the Federal government  Federal facilities have done much to increase the effectiveness
of their environmental management programs, but further progress is needed if Federal
facilities are to meet their obligations to comply to the fullest extent possible with all of the
environmental laws. We at EPA believe that this is an attainable goal and look forward to
working together with affected parties in implementing this strategy and demonstrating that
Federal facilities can truly be the model for compliance which we feel they are capable of
becoming.
/
                                                                           _
       Dae                                                     Lee M. Thomas

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            FEDERAL FAOLITIES COMPLIANCE STRATEGY

                    TABLE OF CONTENTS
                                                          Page
                                                         Number
INDEX OF EXHIBITS	   vi

LIST OF ACRONYMS AND ABBREVIATIONS	   vii

LIST OF APPENDICES	   ix

EXECUTIVE SUMMARY	    x

CHAPTER L-   INTRODUCTION

A.  PURPOSE OF THE STRATEGY	   1-2

B.  OVERVIEW OF THE STRATEGY	   1-3

CHAPTER n. -   SUMMARY OF RELEVANT ENVIRONMENTAL STATUTES AND
              EXECUTIVE ORDERS

A.  FEDERAL FACILITY COMPLIANCE WITH STATE AND LOCAL
    POLLUTION CONTROL STATUTES	  H-l

B.  FEDERAL ENVIRONMENTAL STATUTES	  H-l

    B.I  Qean Air Act	  D-2
    B.2  dean Water ACL	  D-2
    B.3  Resource Conservation and Recovery Act	  B-4
    B .4  Federal Insecticide, Fungicide, and
         Rodenticide Act	n-5
    B.5  Toxic Substances Control Act.	E-6
    B.6  Comprehensive Environmental Response,
         Compensation, and Liability Act	n-6
    B.7  Safe Drinking Water Act	H-7

C.  EXECUTIVE ORDERS	U-8

    C.I  Executive Order 12088 - Federal Compliance with
         Pollution Control Standards	D-8
    C.2  Executive Order 12146 - Management of Federal
         Legal Resources	II-9
    C.3  Executive Order 12580 - Superfund Implementation	0-9

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                                                            Page
                                                           Number


CHAPTER HL- IDENTIFICATION OF THE REGULATED COMMUNITY

A.  DEFINITION OF A FEDERAL FACTIJTY	 ID-1

B.  STRATEGY FOR IDENTIFYING AND TRACKING THE
    UNIVERSE OF FEDERAL FAOLTnES	ITJ-1

    B. 1   Identifying the Types of Federal Facilities
          in the Regulated Community	ffi-2
    B.2   Improved Use of Available Information and
          Existing Data Systems.	UI-2
   < B.3   Special Initiatives	ITJ-4

CHAPTER IV.- COMPLIANCE PROMOTION. TECHNICAL ASSISTANCE AND
              TRAINING

A.  COMPLIANCE PROMOTION	W-l

    A.I   Information Transfer	FV-1
    A.2   Identifying Compliance Patterns of
          Federal Agencies	IV-2
    A.3   Environmental Auditing	FV-3

B.  TECHNICAL ASSISTANCE AND TRAINING	IV-5

    B.I   Technical Assistance	FV-5
    B.2   EPA "Hotline" Assistance	IV-6
    B. 3   Federal Facilities Compliance Piogram
          Assistance and Oversight.	 FV-7
    B.4   Training Opportunities for Federal Facilities
          Compliance Personnel	 IV-7

CHAPTER V. -  COMPLIANCE MONITORING

A.  OBJECTIVES OF COMPLIANCE MONITORING ACTIVmES	V-l

B.  SOURCE SELF-MONITORING, REPORTING AND
    RECORDKEEPING REQUIREMENTS	V-2

C.  INSPECTION STRATEGY FOR FEDERAL FACILITIES	V-3

    C. 1   Annual Inspection Planning	V-4
    C.2   Regional Reporting of Inspection and Enforcement
          Activities at Federal Facilities  	 V-4

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                                                                Page
                                                               Number

     C.3   Identification of Environmentally
          Significant Federal Facilities for
          Multi-Media Inspections	V-4

     C.4   Coordination with States on Federal
          Facilities Inspections,	V-5

          C4.a   Annual Meeting with States on
                  Federal Facilities Compliance	V-5
          C.4.b   State Reporting on Federal Facility
                  Compliance Status	V-5

D. t ACCESS TO FACILITIES REQUIRING SECURITY
     CLEARANCES	 V-6

E.   SUBMISSION AND REVIEW OF FEDERAL AGENCY A-106
     POLLUTION ABATEMENT PLANS AND PROJECTS	V-6

     E.I   Identification of Priority Projects	V-7

          E.I.a  A-106 Compliance Classes	 V-7
          E. 1 .b  Targeting Resources to Address
                 Priority Areas	 V-8

     E.2   A-106 Process Overview and Time Table	V-8
     E.3   State Participation in the A-106 Process	V-10

CHAPTER VL-  ENFORCEMENT RESPONSE TO COMPLIANCE PROBLEMS AND
               VIOLATIONS OF ENVIRONMENTAL LAWS AT FEDERAL
               FACILITIES

A.   OVERALL COMPLIANCE POLICY AND PHILOSOPHY	 VI-2

B.   EPA RESPONSE TO FEDERAL FACILITIES VIOLATIONS..	 VI-3

     B.I   Federal Facilities Compliance Process: Civil
          Administrative Enforcement Procedures	VI-4

          B.I .a  Notification of Violation	 VI-4
          B. 1 .b  Response by Federal Facilities:
                 Certification of Compliance or
                 Remedial Action Plans	VI-5
          B. 1 .c  Initial Negotiation of Compliance
                 Agreements or Consent Orders	VI-6
          B. 1 .d  Issuance of Proposed Consent Orders
                 or Proposed Compliance Agreements	  VI-8
          B.I.e  Internal EPA Dispute Resolution Procedures	 Vl-9
          B.l.f  Federal Facilities Dispute
                 Resolution Process	  VI-10
                                   ui

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                                                                   Page
                                                                  Numbq-

           B.l.g  Use of Executive Order 12088-
                  Federal Compliance with Pollution
                  Control Standards	VI-11
           B.l.h  UseofE.0.12146-ResoIurionofInteragency
                  Use of Legal Disputes	VI-12
           B. 1 .i   Use of Other Dispute Resolution
                  Procedures for Violations of Signed
                  Agreements or Consent Orders.	VI-11
           B. 1 .j   Impact of Funds Availability on
                  Achieving Compliance and Negotiating
                  Compliance Schedules	VI-12
           B.l.k  Exemptions	VI-13
    «
     B. 2   Enforcement Actions for Violations at
           Federal Facilities Directed at Non-Federal
           Parties	VI-14

           B.2.a   Limitation on Civil Judicial
                  Enforcement Actions Applies Only to
                  Executive Branch Agencies	VI-14
           B.2.b   Contractor and Other Private Parry
                  Arrangements Involving Federal
                  Facilities	 VI-14
           B.2.C   Contractor Listing	VI-16

     B. 3   Criminal Enforcement Actions at
           Federal Facilities	VI-16
     B .4   Press Releases for EPA Enforcement Actions at
           Federal Facilities	  VI-16
     B.S   Monitoring Compliance	  VI-17

CHAPTER Vn. - ROLE OF THE STATES IN RESPONDING TO FEDERAL
               FACILITIES VIOLATIONS

A.   STATE RESPONSE TO FEDERAL FACIUTIES VIOLATIONS	VIM

     A.I   Use of State Enforcement Authorities	VIM
     A.2   State Enforcement Response Lead Following
           EPA Inspection in Delegated States	VH-2
     A.3   EPA Involvement in State Enforcement Actions	VII-2
     A.4   Relationship of State Administrative and
           Judicial Citizen Suits to EPA Compliance
           Agreements,	VD-3

B.   FEDERAL FAOUTIES IN THE STATE/EPA ENFORCEMENT
     AGREEMENTS PROCESS	 VD-3
                                    iv

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                                                                   Page
                                                                  Number
     B. 1   Clear Oversight Criteria and Oversight
           Approach.	VTJ-4

           B. 1 .a  Identification of and
                  Priorities for the Regulated
                  Community	V1I-4
           B.l.b  Clear and Enforceable Requirements	VII-4
           B. 1 .c  Accurate and Reliable Compliance
                  Monitoring	VII-4
           B.l.d  High or Improving Rates of
                  Continuing Compliance	VII-4
           B. 1 .e  Timely and Appropriate Enforcement
                  Response	VH-5
           B.l.f  Accurate Recordkeeping and
                  Reporting	  VII-5

     B.2   Direct EPA Enforcement	  VII-5
     B.3   Advance Notification and Consultation.	.VII-5
CHAPTER VTJL- EPA ROLES AND RESPONSIBILITIES FOR PROGRAM
                IMPLEMENTATION

A.   REGIONAL OFFICE STAFF	VHI-l

     A.I   Regional Administrator	VHI-1
     A.2   Regional Administrator/
           Deputy Regional Administrator	  V1H-2
     A.3   Regional Counsel	VID-2
     A.4   Regional Program Staff/Division Directors	Vffi-3
     A.5   Regional Federal Facilities Coordinator	Vm-4

B.   EPA HEADQUARTERS OFFICES	<	.Vm-6

     B.I   Headquarters Program Offices	   VIE-?
     B .2   Office of External Affairs/Office of
           Federal Activities	VHI-8
     B.3   Office of Enforcement and Compliance
           Monitoring	VUMO
     B.4   Office of General Counsel	 VTJI-10

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                        INDEX OF EXHIBITS
                                                                       Page
Exhibit                                                                Number
    M     EPA Federal Facilities Coordinators	     1-5
  ffl-1     Defining the Federal Facility Coordinators	 ffl-6
•
  ffl-2     Identification of the Regulated Community of
           Facilities with Federal Involvement	ffi-7
  m-3     Federal Facilities Identification Numbers	ffl-9
  ffl-4     Program Information Systems	ffi-11
   »
  IV-1     The EPA Journal	   IV-9
   V-l     Media Program Inspections		V-ll
   V-2     Annual Timetable of Key A-106 Events	V-14
   V-3     Federal Agency A-106 Pollution Abatement Plan-
           Project Report Form No. 3500-7	V-15
   V-4     EPA Inadequate and Needed Sheets and the Federal
           Agency  Response Formats	V-16
  VI-1     Timely and Appropriate Enforcement
           Response Matrix	   VI-18
  VI-2     Federal Facility Enforcement Response Process
           and Dispute Resolution Process	   VI-21
  VI-3     EPA Initial Enforcement Response to Violations
           at Facilities with Federal Involvement	VI-23
 Vm-1     EPA Regional Office Staff Coordination	 VHI-11
 VH3-2     EPA Headquarters Office Staff Coordination	Vm-12
                                      VI

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                 UST OF ACRONYMS AND ABBREVIATIONS
AA        Assistant Administrator
AO        Administrative Order
ATS       Administrator's Tracking System
CAA       dean Air Act
CERGLA   Comprehensive Environmental Response, Compensation, and Liability Act
COCO     Contractor Owned/Contractor Operated
COCO (E)  Contractor Owned/Contractor Operated (Equipment)
CWA      dean Water Act
DOD       Department of Defense
DOJ       Department of Justice
DRA       Deputy Regional Administrator
E.O.       Executive Order
ESD       Environmental Services Division
FARES     Federal Activities Regional Evaluation System
FEMA     Federal Emergency Management Agency
FFIS       Federal Facilities Information System
FIFRA     Federal Insecticide, Fungicide, and Rodenticide Act
FINDS     Facility Index System
GAO      General Accounting Office
COCO     Government Owned/Contractor Operated
GOGO     Government Owned/Government Operated
GOPO     Government Owned/Privately Operated
IRIS       Integrated Risk Information System
JOCO      Jointly Owned/Contractor Operated
NEIC      National  Enforcement Investigations Center
NRC       Nuclear Regulatory  Commission

                                    vii

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            LIST OF ACRONYMS AND ABBREVIATIONS (Continued)

 NOV      Notice of Violation
 OARM     Office of Administration and Resources Management
 CCA       Office of External Affaire
 *
 OECM     Office of Enforcement and Compliance Monitoring
 OF A       Office of Federal Activities
 OGC      Office of General Council
 OIRM      Office of Information and Resource Management
 OMB      Office of Management and Budget
 OMSE      Office of Management Systems Evaluation
 OPPE      Office of Policy and Program Evaluation
ORD       Office of Research and Development
POGO      Privately Owned/Government Operated
PWSS      Public Water Supply System
RA        Regional Administrator
 RAP       Remedial Action Plan
RCRA      Resource Conservation and Recovery Act
SARA      Superfund Amendments and Reauthorization Act
SDWA      Safe Drinking Water Act
SNC       Significant Noncomplier
SPMS      Strategic Planning and Management System
TSCA      Toxic Substances Control Act
UIC       Underground Injection Control
                                   viu

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APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
APPENDIX F
APPENDIX G
APPENDIX H
APPENDIX I
APPENDIX;
APPENDDCK
APPENDIX L
         LIST OF APPENDICES
Summaries of Federal Environmental Statutes:
.  Dean Air Act (CAA)
.  dean Water Act (CWA)
.  Resource Conservation and Recovery Act (RCRA)
.  Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
.  Toxic Substances Control Act (TSCA)
.  Comprehensive Environmental Response, Compensation, and
  Liability Act (CERGLA)
.  Safe Drinking Water Act (SDWA)
Executive Orders 12088,12146, and 12580
EPA Program Definitions for Majors, Minors, Significant
Noncompliers and Significant Violators
EPA Environmental Auditing Policy
EPA "Hotline" Assistance
Reporting, Recordkeeping, and Self-Monitoring Requirements Under
the CAA, CWA, CERCLA and RCRA
OMB Circular No. A-106
Department of Justice Letters (10/11/83 and 12/20/85) and
Congressional Testimony on Federal Facilities Compliance (4/28/87)
Enforcement Response Authorities by Program
Sample Enforcement Response Forms and Letters
Enforcement Actions under RCRA and CERCLA at Federal Facilities and
Elevation Process for Achieving Federal Facility Compliance Under RCRA
Policy on Publicizing Enforcement Actions
                                   IX

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EXECUTIVE  SUMMARY

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                            EXECUTIVE  SUMMARY


       The Federal Facilities Compliance Strategy establishes  a comprehensive and
proactive approach to achieving and maintaining high rates of compliance at Federal
facilities.  It provides the basic framework for EPA's media programs to follow in ensuring
that Federal facilities are fully integrated into Federal and State compliance monitoring and
enforcement activities.  It also attempts to reconcile the Agency's dual responsibilities of
providing technical assistance  and advice to Federal  facilities to help ensure their
compliance, as required under Presidential Executive Order No. 12088, and of taking
enforcement actions against Federal facilities, where appropriate, as provided for in the
various environmental statutes.

       This Strategy clarifies that Federal agencies must comply with environmental laws
in the same manner and degree as non-Federal entities and EPA will utilize the full range of
its available enforcement mechanisms to ensure compliance by Federal facilities. However,
EPA also recognizes that there are certain limitations and differences in the types of
enforcement actions which EPA will take at Federal facilities. In addition, EPA's mandate
to provide technical assistance as well as the restrictions inherent in the Federal budget and
appropriations process influenced EPA's decision that a separate strategy was needed to
address compliance problems at Federal facilities.

       This document was written  to serve several audiences:  to serve as guidance for
EPA Headquarters and Regional staff; to clarify State and Federal compliance monitoring
and enforcement roles; to inform Federal  agencies of EPA's  strategy and  identify
procedures to  be followed when  violations have been discovered; and finally, to
communicate EPA's approach for addressing compliance problems at Federal facilities to
Congress, the public, and concerned interest groups.


Chapter II - Summary of Environmental Statutes and Executive Orders

       Federal agencies  generally must comply with  all provisions of  Federal
environmental statutes and regulations as well as all applicable State and local requirements,
with the exception of very limited Presidential exemptions which may be issued on a site-
specific basis. Presidential Executive Orders also stress the mandyw for Federal facilities to
comply fully with environmental requirements  and to establish procedures for ensuring that
this is accomplished, including special procedures for resolving compliance disputes within
the Executive Branch involving EPA and other Federal agencies,


 Chapter HI - Identification of the Regulated Community

       A more definitive inventory of Federal facilities will enable EPA to establish  more
effective  priorities and select targets for  assistance, compliance  monitoring, and
enforcement activities.  The Strategy clarifies that EPA is focusing on that subset of Federal
facilities which have potential for environmental impact

       The Strategy defines the various types of Federal facilities and Federal lands, and
describes how available sources of information and program data systems will be used by
EPA to identifv and track compliance at Federal facilities. It outlines new actions that EPA
will undertake to improve the quantity and quality of information on the Federal  facilities
universe, including reviews of Federal facility classifications and major/minor facility

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 definitions and the identification of important Federal facility minors and environmentally
 significant facilities on a multi-media basis.


 Chapter IV - Compliance Promotion, Technical Assistance and Training

       To meet its unique responsibilities under E.O. 12088 to provide technical assistance
 and advice to Federal agencies, EPA is establishing a more systematic communications
 system for exchange of information on new or  revised  regulatory  or statutory
 environmental requirements.  The Strategy describes the functions of EPA's various
 [Hotlines" and encourages Federal agency personnel to utilize these services to assist them
 in maintaining compliance at their facilities. In addition to information transfer, the
 Strategy introduces improved approaches for informing Federal facilities of available
 training courses. EPA will attempt to target particular agencies for courses in areas where
 an Agency has had a pattern of compliance problems.
    «
       EPA has a unique opportunity to work with other Federal agencies and the States to
 identify broad patterns of current and potential compliance problems among facilities in a
 given Agency.  Based upon information from Regions and  States about patterns of
 noncompliance by Federal facilities, EPA will develop a comprehensive strategy to correct
 these noncompliance patterns and will work with the parent Agency to ensure die strategy
 is implemented.  In an effort to prevent future compliance problems, the annual A-106
 planning process will be used more effectively to inform Federal agencies of EPA priority
 areas and request them to direct their A-106 projects to these areas where appropriate.

       Federal facilities are also encouraged to adopt environmental auditing programs to
 help achieve and maintain higher levels of overall compliance. EPA will provide technical
 assistance to other Federal agencies in the initiation and implementation of auditing
 programs.


Chapter V - Compliance Monitoring

       The Strategy strengthens compliance monitoring activities at Federal facilities by
ensuring that EPA or the States' presence is being demonstrated at all Federal agencies
 which have the potential for environmental impact Federal  facilities are to be inspected at
 least as frequently as all other sources, consistent with the priorities, frequencies and types
 of inspections established in each media program guidance. In addition, Regions are to
 identify the most environmentally significant Federal  facilities across several  media
 programs as candidates for multi-media inspections.

       EPA plans to improve the efficiency and effectiveness of the Federal agency A-106
 pollution  abatement planning process by addressing compliance  problems at Federal
 facilities before they become violations, linking the process more closely to identified EPA
 environmental priorities and other systematic program improvements.


 Chapter VI - EPA Enforcement Response at Federal Facilities

       The most significant provisions of this Strategy deal with the basic approach and
 procedures EPA will use when responding to violations at Federal facilities. The strategy
 clarifies that Federal agencies are required to comply with environmental laws the same as
 non-Federal regulated entities and that EPA will  utilize all of its available enforcement
 mechanisms at Federal facilities.  The  strategy also recognizes that there are certain
                                       XI

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limitations and differences in terms of the types of enforcement action which EPA will take
against Federal facilities,

       EPA and States are to pursue "timely and appropriate" enforcement responses to
address violations at Federal facilities in a manner similar to actions taken to address
violations at non-Federal facilities.  EPA's enforcement responses emphasize mat if a
violation is not or will not be corrected within the timr frame for violations of mat class, an
enforcement action should be taken consistent with media program guidance,
•
       EPA's formal enforcement responses for Federal facilities emphasize the use of
mutually negotiated remedial actions and schedules in die first instance, formalized through
Compliance Agreements or Consent Orders, depending upon program authorities and
guidance.  EPA will issue  proposed administrative enforcement actions  where mutual
agreement cannot be reached in a timely manner, and will promptly utilize all available
dispute resolution mechanisms to effectively resolve areas of disagreement The Strategy
also clarifies that Federal agency officials are required to take all available steps to obtain
sufficient funds to achieve compliance on the most expeditious schedule possible.

       EPA's enforcement  process for Executive  Branch Agencies  is  purely
administrative, and neither provides for civil judicial action nor assessment of civil
penalties.1  This limitation does not apply to enforcement actions taken by States as
authorized under various statutes nor to EPA actions directed to non-Federal operators of
Federal facilities who are not officials of Executive Branch Agencies. EPA will pursue the
full range of its enforcement authorities against private operators of Federal facilities (e.g.,
GOCOs) where appropriate and also take action against Federal agencies at COCO facilities
in certain circumstances. EPA will develop a COCO Enforcement Strategy as a follow-up
to this document to further clarify this issue.
              i

Chapter VII - Role of the States in Federal Facilities Compliance

       States generally may exercise a broader range of authorities and enforcement tools
than EPA to address violations  at Federal  facilities.  Under many statutes, delegated or
authorized States can use the full range of these enforcement authorities to address Federal
facility violations to the same extent they are used for non-Federal facilities.  States are also
encouraged, wherever possible, to pursue bilateral, negotiated agreements or Consent
Orders with Federal facilities. In any delegated State enforcement action involving Federal
facilities EPA will be careful not to interfere with the State's enforcement proceedings.
However, EPA will be available upon request to either party to help facilitate expeditious
       State  and Federal roles in compliance and enforcement are defined through
State/EPA Enforcement Agreements negotiated by the Region and each of its States for
each media program, consistent with the Policy Framework for State/EPA Enforcement
Agreements and program-specific implementing guidance. While most aspects of these
Agreements pertain equally to Federal and non-Federal facilities, the Strategy outlines
several areas in which Federal facilities should be explicitly addressed in the Enforcement
Agreements process.
   This limitation dow not apply to penalties for violations of Interagency Agreements under Section 120
   of the 1986 Superfund Amendments and Reaulhorization Act (SARA).
                                       Xll

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       As pan of the State/EPA Enforcement Agreements process. Regions should review
 the Strategy with their States and address five areas: (1) the enforcement approach the State
 plans to use for responding to Federal facility violations; (2) the types of situations where
 the State would request EPA support or direct action; (3) any additional information the
 State has agreed to report to EPA on Federal facilities compliance and enforcement
 activities; (4) bow the State will be involved in the A-106 process; and (5) plans for a joint
 EPA/State annual review of compliance problems at Federal facilities in the State.

 •
 Chapter VIII - EPA Roles and Responsibilities for Strategy Impl
       The Strategy clarifies EPA roles and responsibilities for implementing this Strategy
and the overall Federal facilities compliance program. It outlines the roles of the Regional
staff and the various Headquarters offices.

   t   The Strategy emphasizes the need for Federal facilities to be integrated into the
ongoing compliance and enforcement activities of each EPA media program. The Federal
facilities Coordinator's role is to coordinate Regional program office implementation of
these activities.  Implicit in this Strategy is the need for teamwork among the various
offices and staff involved in addressing Federal facilities compliance.
                                 •*•*•***•**•
       This Strategy replaces the previous program document, entitled "Resolution of
Compliance Problems at Federal Facilities" (known as the "Yellow Book"), dated January
19S4, and will still be referred to as the "Yellow Book." Full implementation is being
phased in over the next few years, beginning in mid-FY 1988. The enforcement response
provisions  are to be fully implemented immediately. EPA's Annual Operating Year
Guidance will set subsequent priorities for the implementation of the remainder of this
Strategy. Enforcement and remedial response procedures under CERCLA/SARA generally
are not addressed by this document.  However, references to CERCLA/SARA have been
included in  several places for informational purposes only.

       In addition, the Strategy document has a number of Appendices which contain
various reference documents, model response forms, compliance agreements, definitions
of key EPA terms, etc., all of which should prove to be helpful to environmental staff in
other Federal agencies. Additional copies of the Strategy may be obtained by written
request to EPA at the following address:


       U.S. Environmental Protection Agency
       Office of Federal Activities (A-104)
       Federal Facilities Compliance Program
       401  M Street, S.W.
       Washington, D.C  20460
                                      xin

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       VI.  ENFORCEMENT RESPONSE  TO  COMPLIANCE
     PROBLEMS  AND  VIOLATIONS  OF  ENVIRONMENTAL
                  LAWS AT  FEDERAL  FACILITIES

       This Chapter outlines the basic approach and procedures which EPA uses when
 responding to violations of environmental law at Federal facilities.1 It explains the concept
 of timely and appropriate enforcement response and why it is important to gaining high
 levels of compliance.  It discusses unique features of Federal enforcement procedures,
'State enforcement responses to Federal  facility violations as well as the enforcement roles
 and responsibilities of each level of government.  EPA media program offices also may
 develop specific enforcement guidance for Federal facilities  through either their annual
 Operating Guidance or in other program policy documents. However, any media-specific
 enforcement guidance which is issued for Federal facilities will be consistent with the basic
 framework and concepts set forth in this strategy.

   '   In summary, EPA and States are to pursue "timely and appropriate" enforcement
 responses to address violations at Federal facilities in a manner similar to actions taken to
 address violations at  non-Federal facilities.  EPA's enforcement response guidance
 emphasizes that if a violation is not or will not be corrected within the timeframe for
 violations of that class, a formal enforcement action must be taken consistent with media
 program guidance, including required degrees of formality and timeliness.

       EPA's enforcement approach for Federal facilities emphasizes the importance of
 negotiated responses for the correction of violations and schedules formalized through
 Compliance Agreements or Consent Orders, depending upon program authorities and
 guidance. Where agreement cannot be  reached on all issues in a timely manner, EPA will
 promptly utilize all available enforcement and dispute resolution mechanisms to effectively
 resolve areas of disagreement

       This chapter also clarifies that Federal officials are expected to take all available
 steps to obtain sufficient funds to achieve compliance on the most expeditious schedule
 possible. While EPA recognizes that the Anti-Deficiency Act places certain limitations on
 Federal officials' abilities to commit funds which they have not been authorized to spend,
 they may seek additional funds where needed to correct identified compliance problems.

       EPA's enforcement response for Executive Branch agencies differs somewhat from
 its enforcement against non-Federal parties in that it is purely administrative, and neither
 provides for civil judicial action nor assessment of civil penalties.2 This does not apply to
 enforcement actions taken by States as authorized under various statutes nor to EPA actions
 directed to non-Federal operators of Federal facilities (e.g., GOCO's).  EPA will pursue
 the full range of its enforcement responses against private operators of Federal facilities in
 appropriate circumstances. In addition, sanctions may be sought against individual
 employees of Federal agencies for criminal violations of environmental statutes.
 1   The provisions of this Chapter are not applicable ID enforcement actions under CERCLA/SARA. Any
    references to CERCLA/SARA are included for information purposes only.


 2   This limitation does not apply ID penalties for violations of Intengency Agreements under Section 120
    of  the 19&6  Superfund Amendments and Reauthorization Act (SARA) pursuant to Sections
    109(aXlXE)and 122(f) of SARA.
                                     VI-1

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 A.    OVERALL  COMPLIANCE  POLICY  AND PHILOSOPHY

       Enforcement is an essential supplement to the strong public mandate for Federal
 facilities to comply with Federal, State and local pollution control requirements to the *>m»
 extent as non-Federal entities. Enforcement reinforces the special sense of public duty to
 comply that this mandate instills in our Federal officials. It is generally recognized by EPA
 and the public that compliance promotion activities such as technical assistance and training
 are not in themselves sufficient to create full compliance nor to provide the  necessary
incentives for public x private officials to affirmatively prevent and anticipate problems in
 complying with environmental laws.

       Federal agencies must comply with Federal environmental laws in the same manner
 and degree as non-Federal entities and EPA will utilize the full range of its available
 enforcement mechanisms to ensure Federal facilities compliance. Federal environmental
 statutes require that, in most circumstances, facilities of the United States Government
 comply with Federal, State, and local pollution control requirements to the same extent as
 non-Federal entities. There are, however, certain limitations and differences in terms of the
 types of enforcement actions which EPA will take against Federal facilities.  Unique
 considerations and procedures that are applicable when enforcement is undrrnkgn against
 Federal facilities by EPA are explained in the next section of this Chapter.

       Federal and State enforcement officials must adhere  to the concept of timely and
appropriate enforcement response, which EPA and the States have defined for each
program to establish a strong, stable, and predictable national enforcement presence. What
this means is that if violators are not returned to compliance within a certain timeframe,
through  a variety of informal contacts and enforcement responses, timely formal
enforcement action is required. Timely and appropriate enforcement response guidance,
with its timelines, required degree of formality, sanction and escalation, is deemed essential
to achieving high levels of Federal facility compliance.

       National guidance issued for each environmental program establishes timelines for
key milestones in the enforcement Framework for Implementing State/Federal Enforcement
Agreements," which sets forth the Agency's general principles on timely and appropriate
enforcement response, and program implementing guidance are siimmariTfri in Exhibit VI-
 1 and Appendix C This exhibit also includes the criteria for defining what constitutes a
formal enforcement response. The principles of timely and appropriate enforcement
response apply to the full range of sources regulated under Federal statutes; however, the
application of specific timelines and definitions in Exhibit VI-1 is generally directed to the
most significant violations in each environmental program. Appendix C contains each of
the EPA media programs' definitions for  significant noncompUance. Regions  and States
should also apply these timeframes to other types of violations at Federal facilities to the
extent pocsibk with available  resources and consistent with media program guidance.

       The national  timely  and appropriate milestones are adapted  to specific legal
enforcement mechanisms and procedures unique to each State. Agreements which embody
these  "timely and appropriate" requirements and definitions are reached between EPA
Regions  and  States and committed to writing in State/EPA Enforcement Agreements,
discussed more fully in Chapter VTL These agreements may also specifically address other
compliance activities and response actions of Federal facilities.

       EPA emphasizes negotiation with responsible Federal officials on corrective actions
and schedules needed to expeditiously  resolve noncompliance situations.  EPA will
generally use either Compliance Agreements or Consent Orders (depending upon available
                                      VI-2

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statutory authorities and media program guidance) as the primary mechanism for
formalizing agreements with Federal facilities.

B.    EPA RESPONSE TO  FEDERAL FACILITIES VIOLATIONS

       The Federal enforcement process outlined in this Section is designed to provide a
uniform approach to responding to violations at Federal facilities, recognizing that each
environmental statute establishes somewhat different enforcement response mechanisms.
There  art several facu.s which distinguish EPA's enforcement response to Federal
facilities from enforcement at non-Federal facilities and by the States:

   (a)  EPA has a broad mandate  to provide technical assistance and advice to Federal
       agencies to ensure their compliance, as required under Executive Order 12088 (See
       detail in Chapter II). However, implementing this mandate will not interfere with
       the application by EPA (or States) of timely and  appropriate enforcement
    «   procedures to achieve the most expeditious schedule of compliai
   (b)  EPA places emphasis on negotiations with responsible Federal officials in resolving
       Federal facility noncompliance with enforcement documents issued on consent and
       signed by both parties. This Strategy also explains how failure to reach agreement
       in a timely manner will be resolved.

   (c)  Federal EPA enforcement actions and procedures  for resolution of compliance
       problems differ in certain respects for Federal versus non-Federal facilities:

       i.  EPA will not bring civil judicial suit against Executive Branch Agencies and will
       rely upon administrative enforcement mechanisms for Federal facilities as outlined
       in Appendix I. This respects the position of the Department of Justice that civil
       suits within the Federal establishment lack the constitutionally required "justiciable
       controversy." (See Appendix H which contains the Justice Department's testimony
       on this issue at a Congresional oversight hearing in April, 1987).
       ii EPA generally will not assess civil penalties against Federal facilities under
       most environmental statutes.3 This also is in response to tile Justice Department
       position divussrd above as well as Federal District court rulings which have issued
       conflicting decisions as to whether or not the United States government has clearly
       and unambiquously waived its soverign immunity for penalties under various
       environmental stimtrs

       in. EPA will negotiate Compliance Agreements or Consent Orders with Federal
       agencies to address violations at Federal facilities. The timeframes for negotiation
       of Compliance Agreements and Consent Orders  are defined by EPA's  media
       specific "timely and appropriate" criteria.  Prior to issuing a final Compliance
       Agreement or  Consent Order to a Federal facility, the Federal Agency will be
       provided an opportunity to meet with EPA to discuss key issues and to sign it on
3  This limitation does not apply ID penalties for violations of Intengency Agreements under Section 120.
   of the  1986 Superfund  Amendments and Reauthonzation Act (SARA) pursuant to Sections
   109
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       consent prior to the order or agreement becoming final and effective.4 This
       approach  is also based in pan on DOJ's written position which states that
       "Executive Branch agencies may not sue one another nor may one agency be
       ordered by another to. comply without the prior opportunity to contest the order
       within the Executive Branch."

       iv.  Additional dispute  resolution procedures are provided in media program
       guidance to resolve compliance issues through EPA, and if necessary, involve
       OMB under E.O. 12088 for funding disputes, the Attorney General under EO.
       12146 for legal interpretation and the EPA Administrator under E.O. 12580 for
       CERCLA/SARA.

       v. Federal facilities, like all public entities, face problems in ensuring that funds
       are adequate to meet environmental requirements and remedy noncompliance. The
       obligation to comply is not  altered by such funding considerations;  the most
       expeditious means of -achieving compliance and obtaining funds is expected.
       However, the process for acquiring funds does pose unique considerations which
       should be taken into account in negotiating compliance schedules as described in
       Section B.l.f.

B.1   Federal Facilities Compliance  Process:   Civil  Administrative
       Enforcement  Procedures

       The Federal facilities compliance process outlines the administrative procedures
EPA will follow when responding to civil violations identified at Federal facilities. This
process is illustrated in Exhibit VI-2 and discussed below. These procedures apply when
civil enforcement responses are directed at facilities of Executive Branch Agencies.

B.1.a Notification  of Violation

       EPA monitors  compliance status and identifies violations at Federal facilities
through reviews of source self-monitoring and reporting documents, onsite inspections,
and the A-106 process. Onct a violation is discovered, EPA makes a determination of
noncompliance and takes its initial enforcement response.

       EPA's initial enforcement response to an identified violation may vary depending
on the type of violation and nature of the violator. Media-specific guidance governs the
type of initial response and timeframe for such response. See Appendix I for types of
enforcement mechanisms used under each Federal environmental program. When EPA has
made  its determination that a violation has occurred at a Federal facility, Federal Facilities
Coordinators or media program staff may informally notify the facility (e.g., via telephone)
prior to issuance of formal written notification.  If Federal Facilities Coordinators provide
this informal notification, they should first consult with appropriate media program staff.
This will provide the Federal facility with some additional time to remedy the identified
violation before receiving formal written notification from EPA.

       Generally, EPA issues a Notice of Violation (NOV), or other program equivalent as
the initial written notice for requiring response to address significant violations.  NOVs or
program equivalents issued for violations at Federal facilities are similar to those issued for
4  EPA may issue unilateral administrative orders to Federal facilities under Section 106 of SARA
   following concurrence by the Department of Justice pursuant to Section 4(bKO of Executive Order
   12580.
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non-Federal violations except that they should not mention civil judicial actions by EPA.
At a ™*nimnm NOVs or their program equivalent issued for Federal facilities should:

    •   Be issued to base commander or facility director level officials.

    •   Describe the violation and how it was identified.

    •   Sate that the consequences of not meeting me requirements stated in die NOV in a
       timely manner or responding to EPA by the dates specified will result in  ..ie
       issuance of an order or formal escalation of the enforcement action.  Relevant
       citizen suit provisions of involved statutes may also be cited here.

    •   Explain that the Federal agency can either submit a written certification that it has
       corrected the violation if only a short-term "fix" is required or an action plan and
       schedule for a violation requiring more extensive remedial action. Selection of a
    '   date for requiring submission of a certification of compliance or remedial action
       plan and schedule is dependent on the timely and appropriate timeframes shown for
       each program in Exhibit VI-1. In certain cases, EPA may also include a schedule,
       proposed order, or proposed compliance agreement as pan of or attached to the
       NOV. The NOV should also state the number of days EPA will take to respond to
       the reply.

    •   Refer  to any available alternatives to compliance (e.g., Presidential exemptions or
       specific legislative relief).

    •   Offer  to schedule a meeting or conference with Federal agency officials who are
       authorized to sign a Compliance Agreement or Consent Order.  These officials must
       also have the authority to  make the necessary budget requests to correct the
       violation according to the schedule outlined in the Agreement

       The NOV,  or program equivalents, should  be  tailored to address the specific
noncompliance situation  identified at the facility.  Appendix J provides a model for
developing an NOV. Copies of all NOVs and other enforcement actions issued by EPA to
Federal facilities shall be sent to the involved Headquarters media program enforcement
office with a copy to the Office of Federal Activities.

B.1.b Responst  by Federal  Facilities:  Certification of Compliance
       or Remedial  Action Plans

       Once a facility has received the official notice  of violation or program equivalent, it
is required to  submit either a certification of violation correction, or a  remedial action plan
(RAP) to EPA. A facility can also dispute EPA's noncompliance finding through appeals as
provided for through the dispute resolution process outlined in Section B.l.e.

       The certification of violation correction will consist of a letter from the facility
which identifies the violation and describes remedial action taken. It is accompanied by
support documentation that demonstrates achievement  of compliance.  When remedial
actions needed to correct the violation will exceed the timeframes for timely and appropriate
enforcement  response  for either  achieving compliance or being subject to formal
enforcement response, the facility must submit a remedial action plan.  The plan should:

    •   Describe the noncompliance situation;
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    •  Identify the collective actions to be taken;

    •  Outline the schedule for implementing the remedial actions; and

    •  Describe the content and frequency of progress reports.

       EPA will acknowledge the receipt of the proposed certifications and remedial action
plans with a written response.  An example of such a Response Form is provided in
•Appendix J. A response should be worded so the facility is not insulated from further EPA
or State enforcement action. The response should also specify a date by which EPA will
respond  which should normally be within 30 days.  In complex situations, detailed
comments may follow thereafter.

       Remedial actions and schedules proposed by the Federal facility may serve as a
basis for a Compliance Agreement or Consent Order. Although a remedial action plan does
not Constitute an EPA enforcement response, it may be used as a basis for monitoring
future compliance for violations that are not sufficiently significant, as defined in program
guidance, to mandate formal enforcement response.

       In the event of disputes in instances where formal enforcement response is not
necessary, the Region may use the dispute resolution processes described in Section B.Le
to further escalate and resolve compliance,

B.1.c Initial Ntgotlatlon   of Compliance  Agrtemtnts  or  Conttnt
       Ordtrs

       Where formal enforcement response is required, following the notification of
violation, EPA generally will use Compliance Agreements or Consent Orders as the
primary formal enforcement response to formalize bilateral agreements between EPA and a
Federal agency to ensure expeditious return to compliance. Compliance Agreements will be
used as EPA's principal formal  enforcement response unless media program guidance
indicates that statutory authorities are available for use of Consent Orders for Federal
facilities violations. Appendix I indicates the specific enforcement responses in each media
program and highlights those which are available for use at Federal facilities. Consent
Orders should be used when agreements are negotiated jointly with a State and the State has
administrative order authority,

       It is EPA  policy that Compliance Agreements or Consent Orders should be
negotiated within required media-specific, "timely and appropriate" timeframes or EPA may
take further formal administrative enforcement action to achieve compliance. EPA will
prepare Compliance Agreements or Consent Orders for joint signature by the affected
facility and EPA.  At a minimtin^ tU Compliance Agreements and Consent Orders should
state that the violating facility is  accountable for meeting timeframes and taking required
actions as outlined in the Agreement or Order or be subject to further enforcement action.
In certain cases, it may be necessary to negotiate a two phased agreement or order for the
same violation: the first detailing a schedule for studies necessary to correct the problem
and the second establishing a plan and schedule for remedying the problems based on the
results of the studies. The time schedules included in both may overlap or be concurrent

       Environmental audit provisions will be emphasized in negotiations  in instances in
which the Federal agency can constructively be directed to correct similar violations which
are likely to occur at other related facilities or there appear to be systematic compliance
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 management problems. This is consistent with the July 9, 1986 Policy Statement on
 Environmental Auditing, 51 FR 25004 (See Appendix D).

       Federal Facility Coordinators will assist the media program offices and the Regional
 Counsel's office in preparing and negotiating Compliance Agreements or Consent Orders
 with Federal agencies. Appendix J outlines a format to use when developing a Compliance
 Agreement or Consent Order for a Federal facility. This sample Compliance Agreement
 incorporates model language developed by the Department of Justice.
t     r
       EPA media programs may consider including enforceability clauses in Compliance
 Agreements with Federal facilities which reference the applicable dozen suit provisions of
 the involved statute.  The RCRA program has developed a model "Enforceability Clause"
 to be included in all RCRA Federal Facility Compliance Agreements.  These clauses
 reference the use of applicable citizen suit provisions by States or citizens for failure to
 comply with terms or schedules in Compliance Agreements. See Appendix J for a copy of
 the. RCRA Program Enforceability Clause. Certain EPA Media program offices also have
 developed specific guidance concerning Compliance Agreements. For example, the RCRA
 program model language for Federal facility Compliance Agreements is contained in the
 January 25, 1988 memorandum "Enforcement Actions under RCRA and  CERCLA at
 Federal Facilities," which is contained in Appendix K.

    •  Timefy and Appropriate Response Criteria

       EPA's timely and appropriate enforcement guidance sets forth the criteria for the
 commencement of an enforcement action at a facility in violation. The negotiation of
 Compliance agreements and Consent Orders at Federal facilities are subject to EPA's timely
 and appropriate enforcement response criteria. Based on the type of violation at the facility,
 this guidance establishes the time it  should take to issue the initial enforcement action, the
 type of enforcement action that should be taken, and the amount of rime it should take the
 facility either to achieve full physical compliance or to enter into a Consent Order or
 Compliance Agreement which incorporates a schedule for achieving compliance.

       If compliance is not achieved or a Compliance Agreement or Consent Order cannot
 be negotiated within required media-specific timeframes, EPA generally will issue  a
 proposed order or proposed compliance agreement prior to escalating its enforcement action
 using the dispute resolution procedures outlined in Section B.l.e.

       Timeframes  for issuance of proposed Administrative Orders or Compliance
 Agreements and their program equivalents  will follow media-specific timely and
 appropriate guidance as shown in Exhibit VI- 1.
       Informal attiyancr from OFA and Headquarters media program offices can be used
 at any point in the process.  Regional program offices are encouraged to request OFA
 assistance through the Federal Facilities Coordinators who will assist them in contacting
 Federal agency regional operations and commands to resolve compliance problems. OFA
 and the media program office will work directly with the parent agency's Headquarters
 office and appropriate EPA Headquarters and Regional legal and compliance program
 offices to try to resolve the problem.

       EPA Regional staff also should successively escalate unresolved issues up to the
 Deputy Regional Administrator (DRA), to the extent appropriate before taking formal
 administrative action due to unresolved issues in remedying compliance problems.  The
 DRA may then contact an equivalent level official of the other Federal Agency in an effort
 to achieve resolution.
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 B.1.d Itsuanct  of Proposed  Consent  Orders or Proposed
        Compliance Agreements

       EPA  may issue proposed administrative orders  or  proposed Compliance
 Agreements at a number or different points in the compliance process in order to expedite
 the timely resolution of violations by Federal facilities.  Proposed orders or compliance
 agreements generally are issued to Federal facilities when:

    •   A Federal facility fails to respond by the date(s) specified in • notification of
       violation or program equivalent

    •   A Consent Order or Compliance Agreement cannot be or is not successfully
       negotiated within the timerrames established in media-specific guidance because of
       disagreement on proposed remedial actions, the schedule for correcting the
    1   violation, or other outstanding issues.

    •   A Federal facility has violated the terms of a signed Compliance Agreement or
       Consent Order.

    •   There is an  imminent and substantial endangerment to human health or the
       environment which necessitates immediate at '
       When initial negotiations for a Compliance Agreement or Consent Order to address
the violations at a Federal facility exceed the timely and appropriate enforcement response
timeframes for resolving violations, EPA shall escalate the enforcement response action by
issuing either a proposed administrative order or a proposed Federal Facility Compliance
Agreement to the violating Federal facility.  EPA's use of either a proposed order or a
compliance agreement as the formal enforcement n^ehanitm for Federal facility violations
is dependent upon both the scope of EPA's administrative order authority under each of the
environmental  statutes and media program-specific enforcement guidance on the
appropriate  use of Consent Orders vs. Compliance Agreements at Federal facilities.
Appendix I contains a statute-by-starute summary of EPA's administrative enforcement
response authorities for Federal facility violations. Since there are certain procedural
differences when using orders vs. compliance agreements at Federal facilities, these two
mechanisms  are riisniwxl separately as follows:

   •   Compliance Agreemena

       Where agreement has not been reached within the media program's timeframes for
   formal enforcement action, EPA generally will issue a proposed compliance agreement
   to a Federal facility and allow a specified  period of time, usually 30 days, for the
   Federal agency to respond in writing as to whether it agrees with the terms of the
   agreement or whether it will seek resolution of disputed issues through EPA dispute
   resolution process procedures. Upon issuance of the proposed compliance agreement,
   EPA will notify the Federal facility that failure to either agree to the conditions of the
   agreement or resolve the remaining issues within 30 days of issuance will trigger the
   formal dispute resolution process. If at the end of the 30-day period,  the Federal
   agency chooses to accept the proposed compliance agreement, the agreement will
   become  final and effective  upon signature by botfi parties. If the Federal Agency
   appeals the conditions of the compliance agreement in writing or fails to respond within
   30 days,  the formal EPA dispute resolution  procedures will be initiated.  See Section
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   Bit. below which outlines the formal procedures for escalating and resolving disputes
   between Executive Branch agencies.

   •   Consent Orders

       Where EPA has statutory administrative order authority for Federal facilities, and
   where it is specified in media-program guidance, EPA  will issue a proposed
   administrative order to a Federal facility and allow a specified period of time, generally
   30 days, for the Federal agency to respond in writing stating whether it will (a) accept
   the terms of the proposed order on consent or (b) seek resolution through formal
   administrative appeals procedures EPA has established for the type of order which was
   issued (e.g., Tina! Administrative Hearing Procedures for RCRA Section 3008 (h)
   Orders," issued by EPA on February 19, 1987). If the Federal facility chooses to
   accept the proposed order within the 30-day time period, it will be signed by both
   parties and become a final consent order.

       If the Federal facility fails  to take advantage of this, opportunity and does not
   respond to EPA within the 30-day time period specified in  the proposed order, the
   order will become a final administrative order, effective at the time established in the
   proposed order.  It is important to point put that it is incumbent upon the Federal
   agency to respond to EPA in  writing within the timeframe specified in the proposed
   order (i.e., generally 30 days)  or it will become a final administrative order which will
   foreclose any further opportunity to negotiate and sign an order on consent.  This
   approach is  consistent with the Justice Department's position that EPA may not issue
   Administrative Orders to other Federal agencies "without the prior opportunity to
   contest the order within the Executive Branch."

       When a Federal facility has chosen to appeal a proposed order through EPA's
   established administrative appeals procedures, it shall be subjected to such proceedings
   in the same manner and degree as any private party.  If a settlement is reached through
   the use of these appeals procedures, EPA and the involved Federal facility will both
   sign a final administrative order on consent.   If, however, these administrative
   proceedings have been fully exhausted and agreement cannot be reached on consent,
   the formal dispute resolution process will be initiated and the dispute will be escalated
   to EPA Headquarters following the steps outlined in Section B.l.e. The proposed order
   will be stayed pending escalation and resolution of the dispute.

B.1.t Internal  EPA  Dlsputt  Resolution  Proctdurts


       This strategy sets forth EPA's basic Federal Facilities Dispute Resolution Process
as described in  detail in Section B.l.f below. There are however, certain existing formal
administrative procedures which  are applicable to all regulated entities and these will be
utilized for Federal facilities in appropriate circumstances. Certain media programs also
have issued specific written guidance for resolving disputes at Federal facilities which may
be followed consistent with the process outlined in Section B.l.f.below.  The types of
internal EPA dispute resolution procedures that may be utilized to resolve compliance
problems at Federal facilities are:

   1)  Administrative procedures established for certain specific statutory authorities (e.g.,
       "Final Administrative Hearing Procedures for RCRA Section 3008(h)");
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    2) Media-program specific written guidance for dispute resolution at Federal facilities
       (e.g., "Elevation Process for Achieving Federal Facility Compliance Under
       RCRA," March 24,1988 (See Appendix K)); or

    3) EPA's Federal Facilities Dispute Resolution Process as described below.

       If available, established administrative procedures should first be invoked to resolve
disputes between Executive Agencies. If there are no existing administrative procedures in
place to resolve a conflict at a Federal facility, the Regions should utilize media specific
guidance, when available, or the general Federal facilities EPA Dispute Resolution Process
outlined  below.  Media-specific dispute resolution procedures for Federal facilities still
follow the general concepts set forth in the EPA Federal Facilities Dispute Resolution
Process.  However,  media-specific  guidance may contain  certain variations  to
accommodate media program procedural difference or preferences.

B.f.f Federal  Facilities  Dlsputt Resolution Procest

       The focus of EPA's Federal Facilities Dispute Resolution Process is on cases where
EPA and the Federal agency are unable to agree on the conditions, terms or schedules to be
contained in a Compliance Agreement or Consent Order. This process is also sometimes
utilized for resolving disputes resulting from violations of signed agreements or orders.  In
addition, certain  EPA media  programs (e.g.,  RCRA) have  established other dispute
resolution procedures for use when a facility has violated the  terms of a signed order or
agreement as described further in section B. l.f.

       EPA will make every effort to resolve noncompliance disputes at the Regional level
However, when EPA and a Federal agency are unable to reach formal agreement in a
signed Consent Order or a signed Compliance  Agreement,  the dispute will be formally
referred by the Regional Administrator (RA) to the Assistant Administrator (AA) for the
affected media program, the AA for the Office of Enforcement and Compliance Monitoring
and the AA for External Affairs as shown in Exhibit Vl-2. This joint referral should take
place only after  the Regional Office has tried to resolve the issue within established
timeframes for guiding what constitutes "timely and  appropriate" enforcement response
(See Exhibit VI-1). In the Federal facility compliance process, the use of internal EPA
dispute resolution procedures  is the functional equivalent of a referral of civil judicial
enforcement actions for prosecution in the sense that it provides a final forum in which
disputes may be resolved for Executive Branch Agencies.

       A formal referral shall be sent to EPA Headquarters within 60 days after the
established media rimeframe for formal enforcement action has been exceeded and the
Federal facility has failed to sign a proposed order or proposed compliance agreement If a
proposed order has been appealed, EPA's formal administrative appeals procedures should
first be exhausted prior to making a formal referral to EPA Headquarters.  The referral
package  should describe the identified violation,  provide a historical summary of the
communications and  negotiations with the facility, identify enforcement actions taken
(including any State  or citizen actions),  identify the unresolved issues and include
appropriate support data, with documentation similar to a litigation report The referral
package must be signed by the EPA Regional Administrator.

       The Office of Federal Activities, or the lead media program office, will notify the
RA in writing when Headquarters receives the referral package and also will report to the
Region informally on a monthly basis and quarterly on a formal basis the status of those
facilities formally referred to Headquarters. The involved  EPA Headquarters media
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 program office, with assistance from OFA and OECM, will attempt to negotiate an
 acceptable solution with the parent Federal agency Headquarters office within a m«»imnm
 of 90 days of the referral to EPA Headquarters.  At the conclusion of this ninety-day
 period, it these negotiations are unsuccessful, the Assistant EPA Administrator for the
 affected media r*'l>tfrurn will refer the dispute to the Administrator for resolution.

       The EPA Administrator has primary responsibility for resolving environmental
 disputes between Executive Branch agencies. The EPA Administrator will consult with the
• head official of the parent Federal agency and make every effort to reach agreement on an
 acceptable solution to the problem. If the EPA Administrator determines that mere are
 remaining issues that cannot be resolved, the Administrator may exercise his authority to
 invoke the procedures afforded by Executive Order 12088 or Executive Order 12146 and
 involve either OMB or DOJ, respectively, in resolution of the dispute.

 B.l.g Use of Executive  Order 12088  •  Federal Compliance  with
   '    Pollution Control  Standards

       Section 1-602 of Executive Order 12088 states that "the Administrator shall make
 every effort to resolve conflicts regarding such violations between Executive agenices."
 The EPA Administrator  may request OMB's involvement particularly in cases where
 funding or schedules are the primary issues in resolving the dispute.  Section 1-603 further
 clarifies that OMB "shall consider unresolved conflicts at the request of the Administrator."
 This means that the EPA Administrator is the only Executive Branch official who can
 formally request OMB resolution of a conflict between Federal agencies under Executive
 Order 1208s. The section further states that in resolving such conflicts OMB "shall seek
 the  Administrator's technological judgment and  determination with regard to the
 applicability of statutes and regulations."

       It also is important to point out that Section 1-604 of Executive Order 12088 states
 that "these conflict resolution procedures are in addition to, not in lieu of, other procedures,
 including sanctions, for the enforcement of applicable pollution control standards." This
 provision recognizes that applicable EPA internal dispute resolution procedures shall be
 utilized prior to Executive Order 12088 being invoked by the EPA Administrator.

 B.1.h Use of  Executive  Order 12146  •  Resolution of Interagency
        Legal  Disputes

       Executive Order 12146 (Appendix B) provides for the subminal of legal disputes
 between Federal agencies  to the U.S. Attorney General whenever Executive Branch agency
 heads are unable to resolve such legal disputes.  The Executive Order clarifies that an
 interagency "legal dispute" would include "the question of which [agency] has jurisdiction
 to «Hminiyt^r a particular program or to regulate a particular activity." In addition, Section
 1-402 of Executive Order  12146 specifically states that

       "Whenever two or more Executive  agencies whose heads serve at the
       pleasure of the President are unable to resolve such a legal dispute, the
       agencies shall submit the dispute to the Attorney General prior to proceeding
       in any  court,  except where there  is specific  statutory vesting  of
       responsibility for a resolution elsewhere."

       This means that while the EPA Administrator may invoke E.0.12088 for Federal
 facility disputes related  primarily to funding  and scheduling issues, he may invoke
 Executive Order 12146 in cases involving legal disputes.  Therefore, for Federal agency
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  legal disputes the EPA will utilize its internal dispute resolution procedures prior to
  invoking EO. 12146 as outlined above.  When a legal dispute cannot be resolved between
  the EPA Administrator and the involved Agency head, the EPA Admmstrator may request
  the involvement of the Justice Department in resolving the dispute as outlined inEO
  12146. Another significant difference between the EO. 12088 and the E.0.12146 dispute
  resolution procedures is that, unlike E.O. 12088, referral of disputes to the Attorney
  General is not limited to EPA, ie., either Federal agency or both that are involved in a legal
  dispute may submit the case to the Justice Department.
 •
  B.1.1 Ust of Other Dispute  Resolution Procedures for Violations  of
        Signed Agreements or Consent Orders

        The internal dispute resolution procedures outlined above are used primarily to
 resolve disputes which arise prior to the finalization of a signed Compliance Agreement or
 Consent Order (e.g., the involved parties cannot agree on the terms, conditions or
 schedules in the order or agreement). However, there are also situations where disputes
 occur when a Federal facility violates the terms of a Compliance Agreement or Consent
 Order which has already been signed by both EPA and the involved agency.  In such cases,
 other dispute resolution procedures may be utilized if EPA and the Federal facility had
 previously agreed to use other means of resolving disputes that arise in the context of
 signed agreements or consent orders. For example, the RCRA program has developed this
 type of dispute resolution process as outlined in their January 25, 1988 guidance
 memorandum "Enforcement Actions Under RCRA and CERCLA at Federal Facilities"
 (See Appendix K). The primary differences between these procedures and what is provided
 for in the Federal Facilities Dispute Resolution Process  (Section B.l.f.) are different
 timeframes  and establishment of the EPA Administrator as the final arbiter for disputes
 resulting from violations of signed agreements.

       In addition, the use of alternative dispute resolution (ADR) procedures, ie.,
 employing neutrals such as mediators, fact-finders, or arbitrators, may be very helpful in
 resolving compliance problems and disputes at a Federal facility  (See the Administrator's
 Guidance on the Use of Alternative Dispute Resolution in EPA Enforcement Cases, dated
 August 14,1987).

 B.1.J Impact of Funds  Availability on Achieving Compliance and
       Negotiating  Compliance  Schedules

       The  Federal environmental statutes generally require that Federal facilities must
.comply with pollution control requirements to the same extent as non-Federal entities. The
 obligation of a Federal facility to comply is not solely contingent upon the availiability of
 existing funds. In fact. Executive Order 12088 states that, "the head of each Executive
 Branch agency shall ensure that sufficient funds for compliance with applicable pollution
 control standards are  requested in  the agency budget" Specific exemptions under the
 statutes discussed in Section B.l.k. do provide a highly limited exception where the
 President has specifically requested  an appropriation  as pan of the budgetary process and
 the Congress failed to «™>ic»  available such requested appropriation (See RCRA {6001,
 CAA5118.CWAJ313).

       Federal facilities are expected to seek all possible means of funding to achieve
 environmental compliance. While the A-106 pollution abatement process is the primary
 vehicle which Federal agencies use to plan for environmental projects, it is not the only
 funding related mechanism available. Many compliance problems may not require large
 capital expenditures,  e.g., operation and maintenance (O&M) activities, and Federal
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 agencies ire expected to use all available existing funds to return to compliance in such
 circumstances.  Some Federal agencies have O&M accounts or capital accounts for building
 and construction funding, which can serve as a source of funds. If a compliance problem
 does require significant capital expenditures, the agency can consider reprogramming
 funds, transfer authority, or requesting a supplemental appropriation, which will enable an
 agency to receive funds in the year in which they are needed.

        During negotiations on Compliance Agreements and Consent Orders, Federal
• officials will be expected to offer the most expeditious means of funding required remedial
 action(s).  However, EPA recognizes that the Anti-Deficiency Act (31 U.S.C. (1341)
 prohibits Federal officials from commiting funds beyond those they are authorized to
 spend.  Therefore, the language in the model Compliance Agreement in Appendix J simply
 commits the Federal official to seek any additional necessary funding where existing funds
 are unavailable to correct identified compliance problems. Additional appropriations should
 be sought only where it has been determined that existing agency funds are either
 unavailable or inadequate to address the violations.  The Federal official  signing a
 Compliance Agreement or Consent Order should have the authority to obligate the funds or
 make the necessary budget requests to expeditiously correct the violation according to the
 schedule outlined in the Agreement or Order.

        Section 1-602 of E.G. 12088 provides the opportunity for OMB to consider such
 alternate sources of compliance funding as reprogramming or environmental accounts and
 should be used by Federal agencies to ensure that all possible avenues of securing
 necessary funds are exhausted

 B.1.k Extmptlons

        As directed by Section 1-703  of E.O. 12088, EPA can advise the President on
 recommendations made by Federal agencies concerning exemptions of facilities from
 compliance with applicable environmental regulations. Exemptions  may be granted only
 where such exemptions are necessary in the interest of national security or in the paramount
 interest of the United States.  Additional requirements are imposed in  particular
 environmental  statutes, e.g., in some, such an exemption is authorized for one year and
 may be renewed, if necessary.  In addition, as  noted in  Section B.l.e, exemptions may
 only be granted for lack of funds if the President specifically requests such funds from
 Congress and they are denied. Section B of Chapter 0 w^^ar^n^s. the provisions of each
 of the statutes  which provide for such exemptions.  It should be noted that while such
 exemptions are provided for in the statutes, they have been rarely, if ever, invoked to date,
 and it is  not anticipated  that there will be any increase in the request or granting of
 exemptions in the future,

        The Regional office will assist any Federal facility which believes it cannot comply
 with pollution control requirements in rinding ways to achieve compliance. Every effort
 will be made to negotiate an alternative to an exemption which is acceptable to the parent
 Federal agency, EPA, and State and local pollution control agencies,

        If a Federal agency recommends that a facility receive an exemption, the EPA
 Regional office will provide OF A, the Headquarters media enforcement office and OECM
 with documentation of the problem so that EPA  can establish a position on the exemption.
 The Regional office should also submit its analysis of the pros and cons of granting such
 an exemption.  The analysis should include the positions of any affected States. OFA will
 then submit a recommended  position for the Administrator to submit to OMB with the
 views of all affected offices within EPA.
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       If an exemption is granted to a Federal facility, EPA will provide assistance to the
 facility in order to correct the pollution problem as expeditiously as possible. The objective
 is to bring the facility into compliance prior to the expiration of the exemption to preclude
 the need for a renewal A copy of the exemption will be sent to any affected States.

 B.2   Enforcement Actions  For Violations  at Federal Facilities
       Directed  at Non-Federal Parties

       This section outlines EPA's enforcement approach for addressing violations at
 Federal facilities which are operated by private contractors or other non-Federal parties,
 which generally are subject to the full range of EPA's civil judicial and administrative
 enforcement authorities.

 B.2.a Limitation  on  Civil Judicial Enforcement Actions  Applies Only
        to  Executive Branch Agencies

       Although EPA will not bring civil judicial enforcement action or assess civil
 penalties under most statutes against other Executive Branch Departments and Agencies,
 EPA intends to exercise its full authority to bring civil suits and assess civil penalties, as
 appropriate, against parties that are not subject to this constraint.

 B.2.b Contractor and  Other Private Party  Arrangements  Involving
        Federal   Facilities

       Most environmental statutes authorize enforcement response to be pursued against
either facility owners, operators or both to correct violations of environmental law.  There
are numerous Federal facilities and public lands which have some level of private party or
non-Federal government involvement in their operation or use. In its April 28, 1987
Congressional testimony the Department of Justice stated that EPA has the authority to take
enforcement action against private contractors at Federal facilities (See Appendix H).  There
may be cases where it will be more appropriate to direct enforcement responses to these
other parties, or to  both the non-Federal parry and the Federal agency depending on the
nature of the non-Federal involvement, the language of the involved environmental statute
or other factors. This issue arises frequently at government-owned, contractor-operated
Federal facilities, commonly known as COCO facilities.

•  EPA Enforcement Response Policy a COCO Facilities

       EPA's initial enforcement response at COCO facilities is influenced by a number of
factors including: the statutory language as to who can be held responsible, (Le., providing
thai enforcement can be directed at the owner, operator or both); decisions made by State
and EPA officials  in deciding who the permit holder should be in the case of permit
violations; established contractual arrangements; the nature and type of violation(s); and
other  factors which may determine where enforcement  response will yield the most
expeditious return to compliance and deterrence for future violations. In this regard, it is
EPA policy to pursue the full range of its enforcement  authorities against contractor
operators of government-owned facilities in appropriate circumstances. EPA also may take
enforcement actions against Federal agencies at COCO facilities following the procedures
outlined earlier in  this  chapter. In certain situations, it may be appropriate  to pursue
enforcement actions against both the private contractor and the involved Federal agency.
                                     VI-14

-------
       As • follow-up to this strategy, EPA will be developing an Agencywide COCO
Enforcement Strategy which will provide more detailed criteria and factors to be considered
in determining which parry or parties to pursue enforcement action against This strategy
shall also address the extent to which  there are certain  Federal agency-specific
circumstances which could affect to whom EPA's initial enforcement response should be
directed.

       Exhibit VI-3 provides definitions of the various types of facilities and lands with
•Federal involvement  This exhibit designates which party EPA generally will direct its
initial enforcement response against when violations are identified (i.e., either the Federal
agency or the involved private party). Given the complex mix of public  and private
ownership, operation, and use of the term "Federal facilities," the guidelines in Exhibit VI-
3 should help EPA to eliminate delays in taking initial action to return violators to
    <   It is important to note that this approach focuses only on the party at which EPA's
 "initial enforcement response" will be directed. Following this initial response, EPA's
 review of additional information and possible discussions with each parry may affect
 against which party any further enforcement action should be taken, if such further action is
 necessary.  In addition, EPA's enforcement response against either or both parties does not
 limit or otherwise restrict any future determination of their possible joint or several liability
 in cases involving CERCLA or RCRA cleanup actions. Simultaneous enforcement actions
 against both the Federal agency and the contractor should be considered if this would
 facilitate resolution of the compliance problem.

 •   Notification Procedures for COCO Enforcement Actions

       When EPA has determined which party it will pursue enforcement  action against,
 EPA will make every effort to notify (through, at a minimum, a formal copy (cc) of tile
 enforcement action) other involved parties of the action being taken against either the
 Federal  facility or the  contractor.  This is important not only to enhance effective
 communication but also to assist in bringing about expeditious compliance and remedying
 the violation as soon as possible.

       When EPA determines that its initial enforcement response will be directed at the
 contractor, EPA will take enforcement action appropriate for private parties. This will
 usually be an NOV, administrative complaint or the program equivalent (depending on the
 nature of the violation and the media program  guidance) to the contractor explicitly stating
 that they are primarily or individually responsible for correcting the violation in a timely
 manner and for responding directly to EPA by the date specified.  The limitations on civil
 judicial enforcement and on the imposition of penalties that is applicable to enforcement
 actions against Federal Executive Branch Agencies, are not applicable to enforcement
 actions taken against non-Federal parties.  Where the notice or complaint is sent to the
 contractor, it also will state that the involved Federal agency has been simultaneously
 notified of the action being taken against the  contractor. A copy (cc) of the action taken
 against the contractor should not only inform  the Agency of the enforcement action being
 taken against the contractor but also include a notice which emphasizes the importance of
 their responsibility to effectively oversee their contractor to ensure compliance  (See
 Appendix J). It should also request the Agency's complete cooperation in working with the
 contractor  to correct the violation and return the facility to compliance as quickly as.
 possible. In circumstances where Federal funding is required to collect the violation, the
 approach and considerations described in  Section B.l.j. are applicable and will be
 considered in any agreements reached on expeditious compliance schedules.
                                      VM5

-------
       When EPA determines that its initial response should be directed at the involved
 Federal facility, EPA will send, where appropriate, an NOV or the program equivalent to
 the Federal facility stating that they are responsible for correcting the violation in a timely
 manner and for responding to EPA by the date specified. A copy of the notice will be sent
 simultaneously to the involved contractor.

 B.2.c  Contractor  Listing

       The regulations at 40 CFR Pan 15 establish the contractor listing program in which
 facilities that violate Qean  Air or Clean Water Act standards may be  put on a List of
 Violating Facilities. Any facility on the List is ineligible to receive any non-exempt Federal
 foyernment contract, grant, or loan, or other assistance.  Contractors operating Federal
 '—''ides are not exempt from being placed on the List
       Such listing is mandatory where a violation at a facility gives rise to a criminal
conviction under 5 113(c) of the CAA or 6 309(c) of the CWA. It u EPA policy to initiate
discretionary listing actions against recalcitrant contractors who are operating Federal
facilities in a manner which causes continuing or recurring violations of the CAA or the
CWA. Under the regulations, EPA may initiate a discretionary listing action against a
facility only if the facility is already die subject of requisite EPA or State enforcement action
against the contractor. The policies and procedures for the contractor listing program are
described in guidance issued by OECM "Implementation of Mandatory Contractor Listing,"
August 8,1984; "Implementation of Discretionary Listing Authority," July 18,1984; and
"Contractor Listing Protocols," October 1987.

B.3   Criminal Enforcement Actions  at Federal Facilities

       In situations where employees of Federal agencies have committed criminal
violations of environmental statutes applicable criminal sanctions may be sought against
such individuals, in the same manner as is done with respect to employees of other types of
regulated entities.  Such criminal violations will be addressed in accordance with the
investigative policies and procedures of the EPA/NEIC Office of Criminal Investigations
and the Agency's criminal enforcement priorities set by the Office of Enforcement and
Compliance Monitoring.

B.4   Press Releases for  EPA Enforcement Actions at Federal
      Facilities

      It is the policy of EPA to use the publicity of enforcement activities as a key element
of the Agency s program to promote compliance and to deter ooncompliance with
environmental laws and regulations. Publicizing EPA enforcement actions on an active and
timely basis informs both the public and the regulated community of EPA's efforts to
ensure compliance and take enforcement actions at Federal facilities. The issuance of press
releases in appropriate circumstances can be a particularly effective tool  for expediting
timely compliance at violating Federal facilities.

       Consistent with EPA November 21, 1985, "Policy on Publicizing Enforcement
Actions,  " (Appendix L) the strategy for EPA press releases on enforcement actions at
Federal facilities is as follows:

   •   Press releases generally will be issued for major enforcement actions such as:
                                     VI-16

-------
          Significant Compliance Agreements or Consent Orders signed by both parties
          (and approvals  of major  RAPs where Compliance Agreements  are
       -   Referral of disputes to EPA Headquarters when agreement cannot be reached at
          me Regional level

       •   Proposed contractor listings and the administrative decision to list

       All press releases should be done as a pan of communications strategy which wfll
be developed for all EPA enforcement actions involving Federal facilities consistent with
EPA Order No. 1510.1 "Communication Strategy Document Development" issued April 7,
1987 and transmitted by memorandum from the Administrator to all EPA Senior Managers
on June 24,  1987.  This order states that "Communication Strategy Documents will be
developed for all major actions by the appropriate AA or RA." "Enforcement Actions" are
included in the definition of Agency actions covered by the Order (See section 5 of EPA
Order 1510.1). At a minimum, these communication strategies should include provisions
for notifications to OEA and affected Headquarters program offices as well as a senior
ranking official at the affected Federal facility or agency.

       EPA's decision to issue a press release and the contents of press releases are not
negotiable with Federal agencies or other regulated entities. The publicity of enforcement
actions against Federal facilities must be consistent with EPA's "Policy On Publicizing
Enforcement Actions" (GM-46) jointly issued on November 21, 1985 by  the Office of
Enforcement and Compliance Monitoring and the Office of External Affairs;  in addition, in
the case of criminal enforcement actions such publicity must be in accordance with the EPA
guidance memorandum (GM-55) "Media Relations on Matters Pertaining to EPA's
Criminal Enforcement Program" jointly issued by the Office of Enforcement and
Compliance Monitoring and the Office of External Affairs on December 12, 1986.

B.5   Monitoring  Compliance

       The EPA Regional office  is responsible for monitoring a Federal  facility's
compliance with any remedial actions and associated schedules which have been agreed to
in formal EPA enforcement actions.  Such Compliance Agreements or Consent Orders
between EPA and Federal facilities are tracked in the EPA Consent Decree Tracking System
maintained by the Office of Enforcement and Compliance Monitoring. Regional Federal
Facilities Coordinators in cooperation with the regional program offices, must closely
review A- 106 submissions against all Compliance Agreements, Consent Orders, approved
remedial action plans or consent decrees to ensure that projects and corrective actions
agreed to are being requested as scheduled Compliance monitoring and the A-106 process
are further f^T^f4 in
                                    VI-17

-------
                                              EXHIBIT v|.i
 •Hey Framework I

 tlonal programs wist
 tabllsh benchmark  or
 Iestones for what
 mstUutes timely and
 ipropriatc enforcement
 MS toward Ultimate
 •solution and full
 'jrslcal compliance.

 i designing ever-
 fht criteria for
 •ely enforcement
 fsponse,  each pros*
 • •in attempt  to
 ipturt the  following
incepts:         ^

 A  set nuBber of
 jr$  from detection
' violation to
            TWEIT AND APPROPRIATE ENFORCEMENT RESPONSE HATS II

                    Drinking
      HPDES?	waterJ       U1C«       AIR*
       tt$
Tes
"es
                     Tcs
Oitt of »1ol*-
tlon Is vtton
•goncy loams
about violation
Required to
screen all ONRs
within 30 4ay»
of receipt.
By the t1«e a
periltte« ap-
pears on the
QHCR, Informal
or foraal «n-
forcement ac-
tions should
have been Initi-
ated.
Clock starts
after State
Is consider-
ed to have
•discovered*
en SNC
(within t
months after
the end of
each report-
Ing period).












Clock
starts
30 days
after
date of
Insp. or
receipt
of self-
monitor-
ing re-
port.
The SNC
shoul d
be re-
solved
by the
end of
the
quarter
in which
the SNC
first
appears.
Clock starts
30 days af-
ter date of
Inspection
or receipt
of a source
self -moni-
tor ing re-
port which
first Iden-
tifies the
violation.
•y day 4S
source should
be notified
by State of
the violation






                                                            Tts
                      Clock starts when
                     'case development
                      staff determines
                      a violation IMS
                      occurred through
                      review of Inspec-
                      tion report and/
                      or other data
                      (for tracking pur-
                      poses, flied at
                      45 days after In-
                      spection.
                      Initial enforce-
                      ment response for
                      Class I violators
                      Is an NOV within
                      30 days of dis-
                      covery.  For High
                      Priority Violators
                      thcra Is no Inltl-
                      tlal Informal ac-
                      tion—the Initial
                      action Is formal.
                                                                             Interpreutive
                                                                             •ale re state
                                                                             Primacy for
                                                                             •se violations
                                                                             which meal  on-
                                                                             ly with In.
                                                                             stances where
                                                                             DA refers
                                                                             violations to
                                                                             State, not
                                                                             with viola-
                                                                             tions dis-
                                                                             covered by
                                                                             States.
                                                       deck starts
                                                       •ken CM re-
                                                       fers signifi-
                                                       cant violators
                                                       to State.
                                                       State has JO
                                                       days to Ini-
                                                       tiate an In-
                                                       vestigation
                                                       (can obtain
                                                       extensions
                                                       eased on el
                                                       cwstancer
 •Pol Icy Framework for State/EPA Enforcement Agreements* August 25.  1986.
 •FT 1987 National Guidance for Oversight of NPOES Program* April  18,  1986.
 •Guidance for FT 1987 PUSS Enforcement Agreements.' August 1986.  *PWSS Compliance Strategy,* April 1. 1987.
 and "Definitions of Timely and Appropriate Action and Significant Non-Camp) iance.* August 27, 1987.
 •UlC^rogram Guidance 153.* December 1986 and 1)1 C Compliance Strategy.*  torch 31. 1987.
 •Timely and Appropriate Enforcement Response Guidance* April 11.  1986.
 •Enforcement Response Policy* December 21, 1984.
 tnterprative Rule • FIFRA State Primacy Enforcement Responsibilities. 40  CFR Part 173. Jan. IS.  1983.
                                                     \r>  10

-------
Hey Framework
       a specific
   i  of time, *
   •ange of en-
   Mflt teeU
r be  used to try
 achieve com-
iance.
                                          Vl-i  (continues)

                                TINCLT AND APPROPRIATE CITMCEMCNT RESPONSE MATRIX
                         NPOES
                 Prinking Miter
                   U1C
                   AIR
                                                   •CRA
Discussed full
range of Infor-
mal , formal ,
administrative.
and judicial
enforcement
tools. *^





Discusses full
range of Infor-
mal , formal.
administrative
and judicial
enforcement
tools. 1°





01 scasses •
full range
of Informal ,
formal , ad-
ministrative.
and judicial
enforce-
ment tools.




Focuses en
formal enforce-
ment but 1mpl les
HSC ef Informal
tools. EPA may
develop case at
day 90 end v/111
normal ly Issue
ROV at day 120
If violation is
still un-
resolved.
Allows for full
range ef en-
forcement res-
ponses for
Class I I II
violations.





                                                                                    riFRA
                                                                                Interpretive
                                                                                rule fOCneS
                                                                                on feiMt
A prescribed num-
  of days  from  Ini-
1  action  within
ch a determination
uld generally  be<
« that tither  com-
•net has  been
ieved or  an eohlnl-
atlve tnforewent
Ion Itas been taken
jh meets minimum
Ml requirements,
judicial referral
initiate* it
•oprlate.*-
Prior to
appearing on a
2d QNCR for the
same violation
(generally w/1
60 days of the
1st QNCR I dent 1-
fylns the SNC)
pemlttee *ust
be in compliance
or formjl en-
forcement action
•ust be taken.
(p. 30)  Per.
•Ittees that are
Still in viola-
tion en the 26
QNCR. 90 on
Exceptions List
which is part of
SPMS systen.
Prior to
appearing on
a 2d quarterly
report for the
sane violation,
source,MSt be
in coiipl lance.
on an enforce-
able compli-
ance schedule.
or format en-
forcement ac-
tion «ust be
taken.
Prior to
appearing en
a 2d quarter*
ly report for
the saae vio-
lation,
source Bust
be In com-
pliance, en
an enforce-
able schedule
or fomal
enforcement
action must
be taken.
•y tfay 120.
source must be
tither In com-
pliance or en an
Administrative
or judicial or-
der, subject to
referral, er
subject to ore-
posed SIP revi-
sion that  is
likely to be
approved and is
scheduled  for
State hearing.
High Priority
Violators must
commence with
formal enforce-
ment within
90 days ef
discovery. For
••dim priority
violator. If com-
pliance 1s mot
achieved «/i 90
days after the
violation discovery.
a decision to
escalate Is made.
After tmt t*-
vestigatfen
(S COBOltttd,
States tave
30 days te
commence the
enforcement  ;
action.
 Fom«l enforcement action defined in Policy Fre*e«ork «s  having, at  a minima,  the  following elements:
 - c»j.HcUl> r«;uir«i recipient to take some corrective/remeottl action,  or  refrain from certain behavior, to
    achieve or maintain compliance;
 - Explicitly 1s baed on the  issuing agency's determination that a  violation  has occurred;
 • Requires specific corrective action,-«r specifies a desired  result that may be accomplished as the recipient
    chooses. •"< specifies a  timetable for completion;
 - toy impose requirements in addition to ones relating directly to correction,  e.g., specific monitoring.
    planning, or reporting requirements; and
 - Contains requirements that are Independently enforceable without having to prove  original violation and
    subjects the person to adverse legal consequences for  noncompl lance.

 See 'Enforcement Management  System Guide* issued 2/27/86  by AA for Water  for Enforcement Response Guide.

  See "Safe Drinking Water Act Public Wit«r Systea Settlements* -  Interim  Guicance*  issued 11/17/83 by AA for OECN.
                                                          VT-10

-------
                                        CWIBIT VI-I (continued)



                                 TIHELT AND AMROHIATE ENTOMDttKT P.CSPONSE
 Hey Framework
 Follow-Up and
 caution:  A speci-
 e point at which «
 termination Is «ade
 ther that final
 ysical compliance
 s been achieved or
 it escalation to
 judicial enforce-
 nt action should bt
 »en If such actions
 «e not already
 w initiated.
 Final physical
ipl lance datt 1s
»ly established
I required of
; facility.

 Eipedittous
•steal ccnpli-
.« is required.
Scope Of Coverage:
4 • ini«u«. signi-
ant noncompl lers
 to be addressed.
•anJfont to larger
verse to be con-
ered at later
e.
WOES
Guidance estab-
lishes foal that
cases should
proceed fro* re-
ferral to filing
tn 40-90 day*.


SNC lists track
until compliance
ts achieved.

PCS tracks COB-
pi lance •/ AOs.

Consent decree
tracking follows
Milestones until
compliance Is
achieved.

Enforcement
case-specific
Violator is re-
turned to co»-
pl lance as ci-
pedltlously as
possible

SNC who arc
•ajor p*r-
•Ittees


Or ink In? Hater
SNC lists
track until
appropriate
action ts
taken or
sjrste* returns
to compliance
without an
enforcement
action.

Consent dec-
ree tracking
fOllOWS 0)110-
stooes until
compliance is
achieved.
VIC
SNC lists
track until
compliance
Is achieved.
Consent Dec-
ree tracking
follows Mile-
stones until
compl iance
Is achieved.






Alt
COS tracks
status of com-
pl lance with
scaedulc ant 11
physical com-
pliance is
achieved.

Consent Decree
tracking
follows •lie-
stones until
compliance is
achieved.



MSS AO tracking
IOU
SNC lists track
until compliance
ts achieved.
Consent Decree
tracking
follows Bile-
stones until
compliance ts
achieved.

See 3/24/M
OSVCft atom on
Elevation
Process for
Achieving
Compliance at
fed. Facilities.
Fl
Interpret tve
rule has cri-
teria for re
ferrlng sign
ft cant cases.

Consent Dec*
roe tracking
follows •tie-
stones •nttl
compl lance
1s achieved
for all *
cases.




system will track
•ilestones In
federal AOs.
Enforcement
case-specific
No specific
language.




SNCs as de-
fined fur
HCL, N/l and
chem/rad
violations.


Enforcement
case-specific
No specific
language




SKCi as
defined ano
applied to
all well
classes.


Enforcement
case-specific
Eipedltious
compliance
tapllcit In
guidance.


The following
cUsset of SMC:
Class A Stf> vi-
olators in non-
atta intent areas


Enforcement
case-specific
Expeditious
compliance
required.



Applies to
Nigh Priority
Violators and
wmdlum priority
violators


Enforcement
case-specific
Intepr-
rule c
signif.
violations
that EM re-
fers to State
Not appropri-
ate



in violation
for pollutant for
which area ts in
•oamaltwjcnt.
•flSfS violators and
sources operating in
violation of tart Cl
0 pemlt requirements;
end KESHAP violators.

-------
                                          EXHIBIT Vl-2
                                FEDERAL FACILITIES ENFORCEMENT
                                       RESPONSE PROCESS
                                          i:;ft FINALS
                                          AGREEMENT!
          INSPECTION
            OR SELF-
           REPORTED
           VIOLATION
  EPA
 ISSUES
NOV/NON
K»
NEGOTIATE
 GREEMENT
 EPA ISSUES
 PROPOSED
AGREEMENT/
   ORDER
                                                                         ORDER
                                                                        BECOMES
                                                                        EFFECTIVE
                               FEDERAL
                               AGENCY
                              RESPOND
1

"
>

1NIT1
DISP
RESOL

                                           SIGN
                                          ORDER
                                        AGREEM1
                               INITIATE
                               DISPUTE
                             RESOLUTION
                               PROCESS
                               INITIATE
                                FORMAL
                               APPEALS
                               PROCESS

-------
                              EXHIBIT VI-2
                              (Continued)

          FEDERAL FACILITIES DISPUTE RESOLUTION PROCESS
 HEAD OFFICAL
 OF THE PARENT
FEDERAL AGENCY
     EPA
ADMINISTRATOR
    REGIONAL
  ADMINISTRATOR
                                                          DOJ
                                                         UNDER
                                                       E.O.  12146
                                                          OMB
                                                         UNDER
                                                       E.O.  12088
                                    REFFERAL
                                    WITHIN 90 DAYS
                            AA FOR AFFECTED
                            MEDIA PROGRAM
                             AA, OECM; AND
                                AA, OEA
                                             NEGOTIATIONS
                                             NOT TO EXCEED
                                             90 DAYS
                               PARENT FEDERAL
                               AGENCY HEAD.
                                 QUARTERS
                                   OFFICE
                   FORMAL REFERRAL OF
                   DISPUTE WITHIN 60 DAYS
                   AFTER TIMEFRAME FOR
                   ENFORCEMENT ACTION IS
                   EXCEEDED

-------
        EPA INITIAL ENFORCEMENT RESPONSE
TO VIOLATIONS AT FACILITIES WITH FEDERAL INVOLVEMENT
Aaron?**/
Torn Definition
Other Comment . Directed UK

OOOO: OoyMiiiiMH tfHM^aovtamHt ootiited teriiry la t» fcadMonel Fadaral totiirv

permit holdere).
FROM PUBLIC ft* land ol arotar federal agency tor up to twenty yaara (rrtet tia federal 1 and
USE: Pttfa? and Uanaeermr* Act aa brig ae*» Intended uaedoee not im>o^
of *e tend (a g. mCtery t»ee and dama).

vWakon oocurred.


or portiona ol it ara oparated by private oomractor(a).
JOCO* MHtt O¥*nadtoon* actor ooaftted la a tecii» •horo a portion la eonad by t» Fadaral
agancy and a portion ia omnad by a private operator wNcfc opar atea t«a anara laciity
or proM.
al or part ol ito teofely to a private operator lor twit operation and proll

rucept • oxtaaM oy aiatuia or owioj BMJMIL


COCO' Contactor m»iiaac>M ooerated facAv hi • mn uuueii«i»iil owned orivatetv


merwtectura a product or provida • aarvtea.
or apace lor ha operatfona.






HOLDER: been toeued a patent
HOLDER. tfi^W£yg£Ki£**<* * "Wdl1 "" ^ ""


ExO9fl( I VtOtottOfl fWHBO DSCflUaW O* r9OBftf
•QMICy OpVfaWOfl.
rki eMiM •" -* ''MdhTaWA
QrflMTr-FOOWV peWvM.
	 FEDERAL
FACILITY
FEDERAL
FACILITY
	 OR
PRIVATE
PARTY
	 PRIVATE
PARTY

-------
      CHAPTER VII

 ROLE OF THE STATES IN
RESPONDING  TO FEDERAL
 FACILITIES  VIOLATIONS

-------
          VII.  ROLE  OF  THE STATES IN RESPONDING
              TO  FEDERAL FACILITIES  VIOLATIONS


       The purpose of this Chapter is to clarify the role of the States in responding to
Federal facilities violations and to highlight several aspects of the State/EPA relationship
that will be spelled out in the State/EPA Enforcement Agreements. This Chapter should be
read in conjunction with Chapter VI, which sets forth the basic approach and procedures
'EPA and delegated or approved States will use when responding to violations of Federal
law at Federal facilities.

  A.   STATE  RESPONSE  TO FEDERAL  FACILITIES  VIOLATIONS

       States with delegated or authorized Federal programs have primary responsibility
for responding to violations at Federal facilities under most of the environmental statutes
with a few exceptions such as toxic chemical controls under TSCA, and enforcement of
certain motor vehicle requirements under the Clean Air ACL In addition, as discussed in
Chapter n.A of this Strategy most Federal environmental statutes require that Federal
facilities must comply with Federal laws and regulations, but also with all applicable State
and local environmental requirements to the same extent as non-Federal entities.

       EPA retains parallel legal authority and responsibility to enforce Federal law even in
delegated or approved States.  As a matter of policy, in order to avoid duplication of effort
where both EPA and States have parallel enforcement authority, EPA enforcement action in
States where programs are delegated or approved only take place when a State: (1) fails to
take timely and appropriate action, (2) requests EPA to take the lead or decide that joint
enforcement action is appropriate, or (3) in other limited circumstances as outlined in the
"Policy Framework for Implementing State/EPA Enforcement Agreements." The remainder
of this  section highlights the following areas concerning State responses to Federal facility
violations:

    •   The use of State enforcement authorities;

    •   State enforcement response following EPA inspections in delegated States; and

    •   The relationship between EPA and State enforcement actions against Federal
       facilities.

A.1   Ust  of State  Enforcement Authorities

       As noted above, most EPA statutes envision that States with adequate authority and
capability will assume operating responsibility for environmental programs, including
Federal facilities. While the extent of delegation varies from program to program and State
to State, the  majority of EPA's responsibility for direct program administration on a dayrto-
day basis including initial obligation for enforcement, has been assigned to the States
through delegation or authorization.

       States are not subject to the same constraints as EPA regarding enforcement actions
against Federal facilities. As a result. States generally may exercise a broader range of
authorities and enforcement  tools than EPA to address violations at Federal facilities.
States should use the full range of their enforcement authorities to address Federal facility
violations to the same extent they are used for non-Federal facilities while meeting the
requirements of timely and appropriate enforcement response.  States are also encouraged.
                                     VD-1

-------
 wherever possible, to pursue bilateral, negotiated agreements, or consent orders or decrees
 as appropriate with Federal facilities or three party (EPA/State/Fedenl agency) agreements
 as outlined in Section B.l.c where this would facilitate compliance. EPA will, however,
 deem acceptable any State enforcement approaches which are at least comparable to EPA's
 an meeting goals for timely and appropriate enforcement response.

 A.2   State  Enforcement Response Ltad  Following  EPA  Inspection
        In Delegated States
•
       Even where program authorities are authorized or delegated to States, EPA may
 conduct inspections of regulated entities, including Federal  facilities,  for a variety of
 purposes including State  oversight, response to citizen complaints, as pan of special
 enforcement initiatives, or where required by statute (e.g., RCRA Section 3007(c) and
 (d)).  EPA generally provides States with advance notification prior to such inspections and
 generally invites them to participate.

       When violations are identified through such EPA inspections of Federal facilities in
 delegated  States, EPA will  immediately contact  the State and offer them the first
 opportunity to pursue timely and appropriate response with the involved Federal facility,
 consistent with the State's delegated  authority.  EPA will send the inspection report
 identifying any violations to the Federal facility simultaneously with EPA's sharing of this
 information with the State. An up-front mutual decision will then be made between EPA
 and the responsible State agency as to which of them will take any follow-up action. If a
 State is unwilling or unable to take action, or fails to take action in a timely manner after
 initially agreeing to pursue the case, EPA will take direct Federal action after advance
 consultation and notification of the State pursuant to the State/EPA enforcement agreement.

       To the extent possible, arrangements should be made in advance in individual
 State/EPA Enforcement Agreements on the types of situations involving Federal facilities in
 which the State would request EPA support or direct action, paying particular attention to
 these situations in which follow-up is required to EPA inspections.  In particular, in the
 case of a State's use of an EPA inspection as  the basis for its own action, EPA and the
 State should agree on how EPA evidence and expertise will  be utilized in taking State
 enforcement action. How the State uses EPA's inspection report will be up to the State so
 long as the state's response to any violations  identified by EPA's inspection report are
 addressed in a timely and appropriate manner.

 A.3  EPA Involvement  In  State Enforetmtnt Actions

       Because of EPA's ongoing responsibility to provide technical assistance and
 support to Federal Agencies in achieving compliance, as required under E.0.12088, EPA
 may need to be involved in assisting to resolve noncompliance problems even when a State
 takes the lead in an enforcement action.  If either the State or the Federal facility in violation
 requests EPA's involvement, EPA will  participate to the extent determined appropriate by
 affected  Regional program division directors in consultation with the  Federal Facility
 Coordinator.  EPA's involvement should focus more on resolving disputes rather than on
 providing project-level technical assistance to the Federal facility which could conflict with
 the State's ongoing enforcement proceedings.

       As directed in  E.G.  12088, EPA has a duty to "make every effort to resolve
 conflicts regarding  such violations between Executive agencies and, on request of any
 pony, such conflicts between an Executive agency and a State, interstate or a local agency."
 However, in each such case, EPA's involvement will respect the peroganves of the State to
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pursue independent enforcement action and EPA will be careful not to interfere with State
enforcement proceedings. EPA will offer both parties its assistance to promote a speedy
resolution of identified problems, and communicate fully with both the State agency and
affected Federal agency officials of its responses and suggested role consistent with EPA's
conflict of interest rules and judicial ethics.

A.4   Rtlatlonshlp of  Stats Ad mini strati vt  and Judicial Cltlztn Suits
      to EPA  Compliance Agrssmsnts
•
      Usually, when EPA pursues a judicial enforcement action against a violator, it
serves as a bar to further enforcement action by States or citizen (under citizen suit
provisions provided in most of the statutes) for similar action for the same violation. The
Federal EPA enforcement process described for Executive Branch Agencies relies heavily
on Compliance Agreements, which do not bar State administrative or judicial actions or
citizen suits to compel compliance by Federal Agencies.  Therefore, when EPA has
negotiated a Compliance Agreement, as opposed to issuing an Order on consent, it would
not legally affect the rights of non-parties to the Agreement Despite EPA's belief that in
the vast majority of cases Compliance Agreements should be a very effective means of
ensuring a prompt return to compliance, there may be circumstances in which States or
private citizens choose to exercise their rights to take further enforcement action. EPA
encourages such non-parties to the EPA/Federal agency Compliance Agreement to fully
consider and use it as  a basis for relief sought in their own actions to seek expeditious
compliance. It is also for the above reasons that it is desirable for States to sign Compliance
Agreements and Consent Orders along with EPA and involved  Federal facilities. In
addition, EPA compliance agreements may contain enforceability clauses which rccognire
the rights of states and citizens to enforce  these agreements through the citizen suit
provisions of the relevant statutes.

6.    FEDERAL FACILITIES IN  THE STATE/EPA  ENFORCEMENT
      AGREEMENTS PROCESS

      State and Federal roles are defined  through  negotiated  multi-year State/EPA
Enforcement Agreements, which are reviewed annually on a State-by-State basis for each
environmental program. Implementation of these agreements is guided by the EPA "Policy
Framework for State/EPA Enforcement Agreements" (issued June 26,1984, revised and
reissued June, 1986), associated national program implementing guidance, and an annual
guidance memo on the  enforcement agreements process from the Deputy Administrator to
the Regions. The purposes of these Agreements are:  to establish clear expectations for
what constitutes a good State or EPA enforcement program through oversight criteria
specified in advance, to establish clear roles and responsibilities for State and Federal
enforcement to avoid  duplication of effort  and use limited resources effectively and
efficiently, and to ensure effective national reporting of accomplishments.

      The Regions have a great deal of flexibility in determining the form  of the
agreements and the internal process for handling the  agreements. Some Regions have
umbrella agreements thai include all programs in one comprehensive agreement negotiated
between the RA and the State Environmental Commissioner. Other  Regions have program-
specific agreements with the respective State Agency. To the extent possible, Regions are
encouraged to incorporate the enforcement agreement provisions into existing documents,
e.g., grants. Memorandum of Understanding's, State/EPA Agreements.

      The timing of negotiations/reviews of the agreements depends on the vehicle chosen
and the Region or Sute planning cycle. Regional program stiff should consult with the
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 Federal Facilities Coordinator in the development and negotiation of the Enforcement
 Agreements.

        While most aspects of the Agreements pertain equally to Federal and non-Federal
 facilities, this Chapter focuses on how Federal facilities should be explicitly «*yirrwd in
 the State/EPA Enforcement Agreements in three of the areas covered in the Policy
 Framework: clear oversight criteria, criteria for direct Federal action, and advance
 notification and consultation.
•


 B.1   CLEAR  OVERSIGHT CRITERIA  AND OVERSIGHT  APPROACH

       There are seven general criteria mentioned in the Policy Framework and covered in
 various forms in program guidance:

 B.I.a Identification of and Priorities for tht  Regulated  Community

       States will be expected to have included Federal facilities in their inventories and
 program information systems, appropriately identified as such through the use of assigned
 Federal facility ID numbers. The Federal Facility Coordinator will make the information
 available to the State  on the different types  of Federal facilities using the FINDS
 information  system. As pan of the enforcement agreements process, EPA Regions and the
 State will review any special needs for identifying and tracking Federal facilities.

 B.1.D  Clear  and  Enforceable Requirements

       Requirements established through permits, compliance agreements, administrative
 orders, and consent decrees should define in enforceable terms a timetable for Federal
 facility remedial actions.  In particular, EPA and the States need to assure that Federal
 facilities have permits that are current. If there are permitting problems at Federal facilities,
 Regions and States should develop a strategy for addressing them  as part of the annual
 work plan negotiations process,  consistent with national program permitting strategies,
 where applicable.

 6.1 .e  Accurate and Reliable Compliance Monitoring

       EPA and the State will review the planned inspection schedules for the coming year
 for each program to ensure that Federal facilities are inspected at required frequencies.

       EPA will assist in resolving any particular problems of access to facilities that the
 States may be encountering, including instructions on how to obtain security clearances,
 where necessary.

 6.1 .d  High or Improving  Rates of  Continuing  Compliance

       As part of each media program tracking system, administering agencies should
 track the progress of returning Federal facility significant violators to compliance.  To
 ensure broad Federal facility compliance, the States may be asked to participate in targeted
 initiatives in compliance monitoring and enforcement for Federal facilities of specific
 agencies or by facility type.
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B.1.t  Tlmaly and  Appropriate Enforcement Rasponaa

       Stn« are responsible for taking timely and tppropriate enforcement action, as
described in Chapter VI. EPA Regions and States are to reach agreement on adapting
national definitions of appropriate enforcement response and timeframes to state-specific
authorities and procedures.  Regions and States should discuss the enforcement approach
the State generally plans to use for responding to Federal facility violations. They should
.also reach agreement on any differences in procedure that the State plans to use, if any, that
'are different from those used for non-Federal facilities.  For example, the Region and State
should discuss any upfront agreements the State wants to make about taking enforcement
action based on an EPA inspection (e.g., for statutorily-required EPA inspections of
Federal TSD's in RCRA), and agree on how Federal or State evidence and expertise will be
used in taking such action.

B.^.f   Aeeuratt  Racordkaaplng and Rtportlng

       In order to support an effective program, administering agencies must have timely.
complete, and accurate information on Federal facility compliance status and enforcement
actions. States should report Federal facility compliance  data as part of each program's
reporting measures and commitments (e.g.,  SPMS and program-specific system). Hie
Regions  should  also request States to provide different information on Federal facilities
compliance status if mutual agreement can be reached as pan of the State/EPA enforcement
agreements process.  EPA is especially interested in receiving copies of State enforcement
actions at Federal facilities.

B.2   DIRECT EPA ENFORCEMENT

       EPA will take direct Federal action principally where a State is unwilling or unable
to take "timely and appropriate" enforcement action, or where the State asks EPA to join in
or take enforcement action. To the  extent  possible, arrangements should be made in
advance, as pan of the enforcement agreement, concerning the types of situations in which
the State would  request EPA to take direct enforcement action to address Federal facility
violations.

B.3   ADVANCE  NOTIFICATION AND  CONSULTATION

       As pan of the agreements process, Regions and States are to agree in writing as to
who, how,  and when EPA  will notify and consult with the  State agency  in advance of
Federal inspections and enforcement actions. Federal facilities may involve  a greater or
different need for coordination between States and Regions than non-Federal facilities,
particularly where the Federal facilities request EPA technical assistance or where EPA is
required to conduct an inspection (e.g., under  RCRA).   Because Federal facilities
compliance problems are often of a multi-media nature, it  may be appropriate  to arrange a
single point of contact in a State, statewide or in a particular program, for Federal facility
issues.

       The advance  notification and consultation protocols in the State/EPA Enforcement
Agreements should incorporate any of the above-mentioned types of special arrangements
necessary for Federal facilities.

       The protocols should also address how the  State will be involved in the review of
Federal agency A-106 submissions, and include plans for an annual review of patterns of
compliance problems at Federal facilities in the State.
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      CHAPTER  VIII

     EPA ROLES AND
    RESPONSIBILITIES
          FOR
PROGRAM IMPLEMENTATION

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            VIII.   EPA  ROLES  AND RESPONSIBILITIES
                FOR  PROGRAM  IMPLEMENTATION


       The Federal Facilities Compliance Program is a multi-media program requiring
 close coordination and cooperation among all involved parties. The purpose of this
 Chapter is to clarify the roles and responsibilities of EPA Headquarters staff and the
 Regional offices for implementing the Federal facilities program and this Strategy. This
•Chapter is necessary in order to ensure implementation and integration of all elements of
 this strategy into the various media programs and EPA's overall internal management
 systems.

       The EPA tasks for ensuring Federal facilities compliance are divided between the
 Regional offices and Headquarters staff. Coordination among both staffs is necessary to
 ensure  that  this Strategy is executed consistent with national and program policies.
 procedures,  and guidance.  Therefore, this Chapter has been divided into the following
 sections:

   (1)  Regional office staff • This section addresses the roles and responsibilities of the
       Regional Administrator,  Deputy Regional  Administrator, Regional Counsel
       Regional Program Staff/Division Directors,  and   Regional  Federal Facilities
       Coordinators for implementing various aspects of the Strategy.

   (2)  Headquarters offices  • This section describes the roles and responsibilities of those
       Headquarters offices  that have certain responsibilities for coordinating and working
       with  the Regions on Federal facility activities.

       Responsibilities for implementing key strategy features such as identification of the
 regulated community, technical assistance/ training, compliance monitoring, involvement in
 the A-106 review process, and participation in the dispute resolution process are described
 for Headquarters and Regional program offices and staff.

 A.    REGIONAL  OFFICE  STAFF

       The following section describes the roles and responsibilities of the Regional office
 staff with regard to the Federal facilities program. See Exhibit VIII-1 at the end of this
 Chapter for a diagram which depicts these Regional relationships.

 A.1   Regional  Administrator

       The Regional Administrator (RA) ensures that Agency policies and guidance on
 implementing Executive Orders 12088 and 12146 and the environmental statutes are
 effectively carried out The RA is responsible for the level of Federal facility compliance in
 the Region through encouragement of and support for the Regional staff in their efforts to
 resolve compliance problems at Federal facilities. The RA will formally refer disputes with
 other Federal agencies that cannot be resolved at the Regional office level within established
 media tirnefraraes to the Assistant Administrator (AA) for the affected media program, the
 AA for External Affairs and the AA for OECM. These referrals will be signed by the
 Regional Administrator.
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 A.2   Rtglonal Administrator/Deputy Rtglonal Administrator

       The RA or Deputy Regional Administrator (DRA) defines the following based on
 internal Regional operating procedures consistent with the guidelines in this strategy:

   (a)  Involvement of Regional Counsels and the role of Program Divisions in the
       issuance of enforcement actions and negotiations of compliance agreements for
       Federal facilities;

   (b)  The  process for evaluating inspection schedules for Federal facilities and
       opportunities for multi-media inspections and the respective roles of the Program
       Divisions, Environmental Services Divisions (ESD's) and Federal Facilities
       Coordinators in this process;

   (c)  Designation of Regional staff responsible for signing Compliance Agreements,
   •   NOVX Consent Orders, etc., for Federal facilities violations;

   (d)  Assurance that Regional program reviews/audits of delegated State programs
       include  a review of the State's progress in addressing Federal facilities
       compliance problems and ensuring that Federal Facilities Coordinators are informed
       and involved in these reviews;

   (e)  Responsibilities for Regional review of Federal agency A-106 submissions and
       coordination with States on the A-106 process; and

   (f)   Assurance that Federal facilities compliance is specifically addressed in State/EPA
       enforcement agreements.
                                                                          4
       In appropriate cases where agreement cannot be reached in the negotiation of
Compliance Agreements or Consent Orders with Federal facilities, Regional staff should
escalate unresolved issues to the RA/DRA for resolution within media specific timely and
appropriate timeframes prior to issuance  of a proposed Order. The RA/DRA may then
choose to contact an equivalent level  official at the involved Federal agency to attempt to
resolve remaining issues.


A.3   Rtglonal Counsel

       Upon request, the Regional Counsel provides legal advice to the RA, the Federal
Facilities Coordinator, and the Regional media program staff on:

       Determining the compliance status of Federal facilities;
       Evaluating the sufficiency of data supporting compliance determinations;
       Negotiating agreements on solutions to compliance problems;
       Resolving compliance disputes with Federal facilities; and
       Reviewing draft Compliance Agreements and Consent Orders for their legal
       sufficiency and consistency with Agency policy.

       Each Region should clearly identify the role of the Regional Counsel in the Federal
facilities compliance process. It is imperative, however, that the Regional Counsel consult
with OECM and Headquarters Office of General Counsel on  questions of national
significance concerning Federal facilities.
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 A.4   Regional  Program  Staff/Division  Dlrtetora

       Each Region is responsible for designating a staff person to serve as the primary
 point of contact for the Federal Facilities Coordinators to deal with on media-specific
 Federal facilities compliance issues. This designee also is responsible for the following
 activities.

 Identifying the Regulated Community • Ensure that Federal facilities data in program
•information systems is maintained through the use of a support identification code for
 Federal facilities.

 Technical Assistance/Training • Assist Federal Facilities Coordinators with their Regional
 multi-media technical program workshops for Federal facilities in their Region. In addition,
 provide the Federal Facilities Coordinator and OFA, at the beginning of the fiscal year,
 with the program's annual training plan and notify the Federal Facilities Coordinator of all
 program training courses and workshops  which will be open to Federal facilities in the
 Region.  On a quarterly basis, notify the Federal Facilities Coordinator of availability of
 spaces for Federal facilities participants,

       On-the-job training opportunities should be considered for officials of other Federal
 agencies where feasible, in cooperation with Regional Federal Facilities Coordinator.

 Compliance Monitoring • Ensure mat Federal facilities are receiving the required number of
 inspections for programs where EPA has the lead. This includes conducting at least the
 same percentage of program oversight inspections for Federal facilities as is done for other
 facilities in delegated or approved states. The Regional media-program contact should
 provide the Regional Federal Facilities Coordinator with copies of all EPA inspection
 reports of Federal facilities.

 State Oversight  • Develop  and negotiate the State/EPA Enforcement Agreements in
 consultation with the Federal Facilities Coordinator and ensure that at least the required
 number of inspections of Federal facilities are being conducted in delegated or authorized
 States.

        The Regional media-contact should ensure  that a  separate component in the
 Regional reviews/audits of delegated programs is included on State handling of Federal
 facilities compliance problems. This insert should be developed in consultation with the
 Federal Facilities  Coordinator.

 Responding to Violations • At the beginning of the fiscal year and periodically as required
 by the program, the Regional media-contact in coordination with the Regional Federal
 Facilities Coordinator, identifies those Federal facilities in significant noncompliance and
 following  media-program  Strategic Planning and Management System (SPMS)
 requirements, reports program actions against the identified Federal facilities Significant
 Noncomplien ($NCs) to Headquarters. Also, works with the Federal Facilities Coordi-
 nator to establish quarterly targets for Federal facilities inspections.

       Following consultation with the  Regional Federal  Facilities Coordinator, the
 program offices  are responsible for  issuing NOVs, Compliance Agreements,  and/or
 Consent Orders, where appropriate, for Federal facilities violations within the time frames
 established in program-specific timely and appropriate guidance.  Program Division
 Directors have the responsibility for sign-off on Federal facilities NOVs, Compliance
 Agreements and Consent Orders in most  Regions consistent with the delegations of
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 authorities for their respective media,  Federal Facilities Coordinators should be notified by
 Division Directors prior to issuance of any enforcement action to a Federal facility. For any
 disputes formally referred to Headquarters under the RA's signature, the program offices
 are responsible for formulating referral packages, in consultation with the Federal Facilities
 Coordinator.

       Where mere is contractor or other private party involvement at a Federal facility
 (e.g., COCO's), the program office must ensure that other panics receive a copy of any
•enforcement action sent to any of the involved parties.

 Involvement in A-106 Review Process • Another responsibility of the Regional media-
 program contact is to review all Federal agency A-106 submissions and provide comments
 to the Federal Facilities Coordinator on media-related pollution ab  ?ment projects in the
 areas of engineering, timeliness, and cost to ensure that proposcu projects have been
 appropriately designed and adequately funded to meet  compliance requirements. In
 addition, Regional media-program  contacts must work with the Federal Facilities
 Coordinator on identified media program priority areas that should be targeted for A-106
 projects by Federal agencies.

       As requested, media-program contacts should participate in on-site preliminary
      ing and design review conferences for significant projects with the Federal Facilities
 Consent Decree Tracking System • In consultation with the Regional Federal Facilities
 Coordinator, media-program contacts will report to HQ/OECM on the status of e^rppUinct
 with the schedule and actions agreed to in an EPA Compliance Agreement or Consent
 Order with Federal facilities, following guidance on the Agency's Consent Decree Tracking
 System.  Items reported should be consistent with SPMS requirements for consent decrees.
 (This is consistent with the guidance on "Consent Decree Tracking," Memorandum from
 Alvin L. Aim, Deputy Administrator, dated August 15,1984.)

 A.5   Regional  Ftdtral  Facilities Coordinator

       The Federal Facilities Coordinator is responsible for coordination with Regional
 program offices on implementation of Federal facilities compliance activities in the Regional
 office. The Coordinator also is the Regional liaison with the Office of External Affairs
 (OEA) and serves as the primary poim-of-contact for EPA with  all Federal agencies in the
 Region on environmental compliance matters. Duties of the Coordinator typically include:

    •   Ensuring that the Regional staff are knowledgeable on guidance issued by OEA;

    •   Coordinating and quality assurance of Regional A-106 reviews;

    •   Monitoring actions being taken by the Regional staff to resolve compliance
       problems at Federal facilities;

    •   Coordinating negotiations of Compliance Agreements; and

    •   Providing data to OEA on the compliance sarus of Federal facilities located in the
       Region.
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 Besides those duties mentioned above, the Federal Facilities Coordinator has specific
 responsibilities for implementing various aspects of this Strategy and the Federal facilities
 program as highlighted below.

 Identifying the Regulated Community • Regional Federal Facilities Coordinators regularly
 identify Federal facilities information, by type of facility, (i.e., GOGO, COCO, POGO.
 etc.) in the Facility Index System (FINDS) information system. Data for this system is
 provided by Regional program offices and States in order to track the compliance status of
. Federal facilities.  In addition to identifying the regulated community via FINDS data, all
 Coordinators should develop a name list for applicable media programs of those Federal
 facilities minor sources considered to be environmentally significant (limited to no more
 than to 10% of all minor sources per program) and monitor the compliance status of these
 sources.  Besides maintaining the list of minor sources, they also track  those facilities
 which are the most environmentally significant in each Region. This  list is updated
 annually in consultation with media program staff.

 Technical Assistance/Training • The Federal Facilities Coordinators are tasked to conduct at
 least one Regional multi-media technical program workshop annually for Federal facilities
 in their Region with assistance from program offices.  In addition, they invite Federal
 agency environmental personnel in each Region to bimonthly meetings to discuss new and
 upcoming program, generic compliance problems, etc.

        The Coordinator serves as the Regional clearinghouse for information exchange
 with Federal  agencies on new regulations, policies, etc. They also identify appropriate
 EPA training courses and workshops for the Federal agencies and in coordination with
 media program offices and conduct compliance program assistance visits to facilities to help
 them with overall environmental program practices and management.

        As pan of their technical assistance role, Federal Facilities Coordinators provide
 Federal agencies  assistance with designing environmental auditing programs through
 training, workshops, guidance manuals, etc.

 Compliance Monitoring • Federal Facilities Coordinators work with Regional program
 offices and Environmental Services Division (ESD) to establish quarterly targets for
 Federal facilities inspections and schedule multi-media inspections, as appropriate.  As pan
 of this effort, the Coordinators provide ESD annually with a name list of Federal facilities
 that are appropriate candidates to receive multi-media inspections  based upon their
 environmental significance in a number of media program areas.

        Pan of their compliance monitoring tasks involve coordination with program offices
 prior to negotiations with States on the State/ EPA enforcement agreements to decide on a
 mutually acceptable approach to receive compliance and inspection data on Federal facilities
 from delegated or approved States.

 Involvement in A-106 Review Process - Coordination of the Regional office review of
 Federal agency A-106 submissions is overseen by the Federal Facilities  Coordinators in
 accordance with national guidance provided by OFA and OMB. The Coordinators work
 with the program  offices in evaluating the adequacy of proposed projects in the areas  of
 engineering,  timeliness and cost to ensure  that the projects have been appropriately
 designed and adequately funded to meet all compliance requirements. The Coordinators arc;
 responsible for final quality assurance of Regional reviews and for the timely submission
 Of material^ to OFA.
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           ries of the A* 106 submissions are provided by the Coordinators to*the States in
 January of each year for their review.  Once  the States receive their copies, the
 Coordinators conduct an annual meeting with appropriate State representatives to discuss
 their comments on A-106 projects as well as any identified Federal agency patterns of
 noncompliance.

       Federal agencies are informed of selected  annual program priority areas toward
 which A-106 projects should be targeted.  Federal Facilities Coordinators work with the
•agencies to ensure that-A-106 projects are proposed for facilities with compliance
 problems.

        Federal Facilities Coordinators are available to participate in preliminary planning
 and design review conferences on significant projects at Federal facilities, as appropriate.
 They may also request media program technical assistance when necessary.

 Responding to Violations • At the beginning of the fiscal year, in coordination with the
 Regional program offices, the Regional Federal Facilities Coordinators identify die names
 of those Federal facilities in significant noncompliance. They assist with negotiations of
 Compliance Agreements between EPA media programs and involved Federal agencies to
 resolve identified  compliance  problems and violations.  As pan of this process, me
 Coordinator may informally notify the Federal facility of identified violations following an
 EPA inspection and prior to issuance of written notification of violation.  The FFC should
 initiate informal notification process after first consulting with die affected media program
 offices.

 Dispute Resolution Process • As described in Chapter VI, Federal Facilities Coordinators
 may informally request Headquarter's OF A assistance in resolving disputes at any point in
 die Federal facilities compliance resolution process.  They also will assist the program
 office in developing referral packages for disputes formally referred to Headquarters under
 die Regional Administrator's signature.

 Consent Decree Tracking • Each Coordinator provides die program offices assistance with
 tracking die status of EPA Compliance Agreements and Consent Orders with Federal
 facilities for reporting to Headquarters and input into die Agency's  Consent  Decree
 Tracking System.

 B.     HEADQUARTERS   OFFICES

       The following Headquarters staff have certain responsibilities for working with the
 Regions on Federal facilities activities, resolving compliance problems, and developing
 policy and guidance:

       Program Offices;
       OEAOFA;
       OECM
       OGCand
       Office of die Administrator.

 See Exhibit Vffi-2 at the end of this chapter for a diagram depicting these Headquarters
 relationships.
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B.1   Headquarters  Program  Offices

     '  In order to fully implement this Strategy it is critical that the program offices work
with OFA to ensure that media-specific regulations, policies and guidance, and Federal
facilities compliance guidance are mutually consistent and address Federal facilities
compliance issues where appropriate. Also, it is important that the program offices:

    •   Meet with OFA periodically to identify and discuss generic compliance problems at
       Federal facilities.

    •   Continue to provide OFA with speakers, documents and other assistance for the
       monthly meetings of the EPA/Federal Agency Environmental Roundtable.

    •   Ensure that Headquarters evaluations of Regional programs address Federal
   ,   facilities compliance and that program offices report the results of these evaluations
       toOFA.

In addition to these general responsibilities, Headquarters program offices are tasked to
ensure that specific initiatives of this Strategy are integrated program-wide as discussed
below.

                                                                        Federal
                                                                        ss based
upon input from Regions and States and ensure that proper Federal facilities identification
numbers are included for all appropriate sources.

Compliance Monitoring • Headquarters program office staff will ensure that the required
number of Federal facilities inspections (of majors, etc.) are being conducted annually by
Regions and the States, as appropriate. Headquarters will verify that the Regions are
conducting at least the same number of oversight inspections for Federal facilities as for
other facilities in delegated States.

Dispute Resolution Process • The involved media program office shall have  the lead in
resolving disputes referred to Headquarters, in cooperation with OFA and OECM. Each of
the Headquarters program offices shall provide technical advice and assistance in the
resolution of disputes upon referral from the Region. Headquarters media program offices
shall notify OFA and provide copies of any Federal facility disputes which have been
referred to their office, either formally or informally.

Compliance Statistics • Headquarters program offices will work with OMSE, OECM and
OFA  to improve  the quality  of Federal facilities data currently  in EPA's various
Headquarter and  Regional media tracking and information systems. Program offices will
periodically review their definitions of "majors" to ensure that Federal facilities are
adequately addressed.  In addition, appropriate offices will issue guidance requiring
Regions and States to code input data into existing tracking and information systems with
Federal facilities  indicators  and identification  numbers as  appropriate.   Periodic
management reports for the Federal facility subset of regulated sources for subminal to
OFA will be prepared by program office staff, as requested.

Involvement in A'106 Review Process • Review  of Regional  program staff A-106
submissions "by the program offices is necessary to  ensure that media program priority
areas are reflected in proposed projects and to identify compliance problems. All program
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 offices' should meet annually with OFA to update media program priority areas that are to
 be addressed by Federal agencies through the A-106 process.

 Development of Policy and Guidance - Media-specific policies and guidance will be
 developed by appropriate program offices. These policies and guidances should, where
 appropriate, address implementation of program requirements by Federal agencies.  Upon
 request by the media program office, OFA can  coordinate Federal agency review and
 comment on media program documents.

 B.2   Offiea  of External Affairs/Office of Ftdtral Aetlvltlaa

       OEA/OFA is responsible for ensuring effective implementation of Section 1-6 of
 Executive Order 12088 which specifies the administrative procedures to be used in
 resolving  compliance problems at Federal facilities.  OEA/OFA also chairs the  EPA
 Standing Committee on EO. 12088.

       OEA establishes applicable Agency policy and guidelines on Federal facilities
 compliance in consultation with OECM, OGC and the Headquarters program offices.
 Implementing operating guidance for the  Regional Federal Facilities Coordinators is
 developed and issued by OEA/OFA.

       OFA conducts annual audits (Le., the FARES review) of Regional Federal facilities
 programs  to ensure proper adherence to  national guidance, thorough coordination with
 Regional program offices, adequate and ongoing assistance to Federal agencies, and overall
 consistency of the program with this Strategy.

       OEA is the principal point-of-contact with the national offices of other Federal
 agencies through the EPA/Federal Agency Environmental Roundtable.

       OEA assists affected Headquarters program offices in resolving Federal facilities
 compliance problems which the Regional offices escalate for dispute resolution. In
 addition, OEA actively participates in Agency strategic planning and management systems
 to ensure Federal facilities compliance concerns are being integrated into program priorities
and plans and provides analysis of patterns of Federal facilities noncompliance to program
offices on  an annual basis.

       Periodic reports on the compliance status of Federal facilities are prepared by
OEA/OFA for administrative purposes. A quarterly  report identifying major Federal
 facilities which are not meeting substantive pollution control requirements is produced for
 the Administrator. The Federal agencies are provided, semi-annually, with a listing of all
 non-complying facilities under their jurisdiction. A similar report is submitted annually to
 the OMB. This OMB report will be expanded to include information on the compliance
 status of all Federal facilities.  In addition, OEA/OFA conducts annual meetings with
 Headquarters offices  of other Federal agencies to discuss identified  patterns of
 noncompliance.  Other OEA/OFA Federal facilities responsibilities are addressed below.

Identifying the Regulated Community • Coordination with Headquarter program offices
 and the FINDS office is done by OEA/OFA staff to ensure that program information
 systems have adequate and current information for tracking Federal facilities compliance
 itatus.

 Technical Assistance/Training • OEA/OFA  conduct monthly meetings of the EPA Federal
 Agency Environmental Rounduble for top Federal agency officials to exchange information
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»-• regulations, policies, etc. Participation of program office staff is solicited regularly                ?.
     meetings.    "•                                                                       '. :..-  :.

   Currently, OEA/OFA is implementing a comprehensive system for technical              ^ "o
•once, training and information transfer in cooperation with program offices and              '. ;~*'
ional Federal Facilities Coordinators.                                                         ;;"';•

   OEA/OFA serves as a national clearinghouse for opportunities for other Federal
icy participation in EPA training courses  and workshops, and technical assistance
ices available from the National Enforcement Investigations Center (NEIC) and the
ee of Research and Development (ORD) labs. Also, ensures that all of the EPA              Cl; -v*
ines are accessible to Federal agency personnel.                                                v,j;./

   OEA/OFA coordinates extensively with the Office of Administration and Rr~	              ; •'
T
 fc
AA  for the affected media  program office escalates the problem to the EPA
inistrator for resolution.

   OFA will develop and maintain a system for notifying the Regional Administrator
nally on a monthly basis and formally on a quarterly basis on the status of those
ral facilities actions formally referred to Headquarters.

dement in A-106 Review Process • OEA/OFA is tasked to coordinate the Agency-
 review of Federal agency A-106 submissions via  the Pollution Status Report and
jce the annual report to OMB evaluating proposed projects for use by OMB in budget
w process.
                                                                                      "
agement (OARM) in the planning and development of the EPA Training Institute to
re opportunities are available for Federal facilities participants.  Also, coordination
OECM on the development of the basic inspector training course occurs for the same              :~' ;• "-.
«se.                                                                                     ..; ;..:V£
                                                                                           * .• '* * •*
   Federal agencies are encouraged to implement environmental auditing programs and              '•'".':','
t/OFA provides assistance in designing and establishing such programs through              •_'-;';:i"
shops, manuals, guidance, etc.                                                             ?''•£:"'/

toe Resolution Process • When requested by Regional program staff, in consultation
die Federal Facilities Coordinator, OFA will provide informal assistance by working
 ;nvolved agencies' parent offices to attempt to resolve disputes. Such assistance
   i working with the parent agency of the noncomplying facility, where appropriate,
   Tt that funds are made available to correct identified violations as expeditiously as
   /or to secure the cooperation of a recalcitrant facility manager.

   After the RA has tried but been unable to resolve disputes within established media
frames, the cases are formally referred jointly to Headquarters media program office,
IM and OFA for resolution. Upon receipt of the referral package, OFA or the media
ram office will notify the RA in writing of their receipt  of the package.

   OEA/OFA may assist in negotiations of a mutually acceptable solution between
 media programs and the official responsible for environmental compliance matters at
ieadquaners of the parent agency. If this effort fails, within a m«»itmim of 90 days

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 B.3  Office  of Enforcement  and  Compliance   Monitoring

       OECM advises the Administrator, and OEA, and provides guidance to the Regional
 Offices on general enforcement and compliance policy issues relating to Federal ftrilirifs
 including:

       •  Determining Ac compliance status of Federal facilities;

       •  Assessing the sufficiency data supporting compliance determinations;

       •  Conducting negotiations of agreements on solutions to compliance problems;

       •  Resolving compliance disputes with Federal facilities;

       •  Assuring that Federal facilities compliance efforts support national
          compliance and enforcement objectives;
       •  Developing (with OFA and media programs) compliance and enf<
          strategy guidance for Federal facilities;

       •  Coordinating and overseeing the State/EPA enforcement agreements process;

       •  Maintaining the Agency consent decree tracking system, including tracking of
          Federal facilities compliance agreements; and

       •  Conducting follow up on possible criminal violations.

OECM also provides assistance and expertise in the use of alternative dispute resolution
procedures for resolving compliance problems at Federal facilities.

B.4   Office  of  General  Counsel

       OGC  provides legal advice and assistance to the Administrator, OEA, media
program offices and the Regional counsels on legal matters and interpretations related to
Federal facility compliance with the environmental statutes. OGC also plays a major role in
resolving interagency legal disputes and in making referrals to the Department of Justice
under Executive Order 12146 when necessary.
                                     vm-io

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            EXHIB11 , .11-1
EPA REGIONAL OFFICE STAFF
        REGIONAL
      ADMINISTRATOR
         DEPUTY
        REGIONAL
      ADMINISTRATOR
   PROGRAM
    STAFF
  .
  FEDERAL
  FACILITY
COORDINATOR
                  REGIONAL
                  COUNSEL

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EPA  HEADQUARTERS  OFFICE  STAFF
  OFFICE
OF GENERAL
 COUNSEL
  MEDIA
 PROGRAM
 OFFICES
   OFFICE
   OF THE
ADMINISTRATOR
u
 OFFICE
  OF
EXTERNAL!
 AFFAIRS
                 c
   OFFICE  [ 1
    OF   fh
  FEDERAL &•
  ACTIVITIES?'
                   OFFICE OF
                  ENFORCEMENT
                 AND COMPLIANCE
                   MONITORING

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TK.1

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TK.1-1

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                                                            TK.H
                                 .MF.TMTAL .-FOTECTION AGENCY
                                 :'.--. r-i •;- ;-'-.ir>r

                                 •' I  I  'GOT
MEMORANDUM

SUBJECT:  Agency Judicial Consent Decree Tracking and Follow-up Directive

FROM:     James M. Strode    "? -
           Assistant Administrator

TO:        Assistant Administrators
           Regional Administrators, I-X
     This memorandum transmits the Agency Judicial Consent Decree Tracking
and Follow-up Directive. The Directive specifies Agency requirements for how EPA
Regional Offices track compliance with judicial consent decree requirements and for
how Regions select and document decisions on appropriate Agency follow-up
responses to consent decree violations (for the purposes of this Directive, the use of
the term "consent decree" also includes judicially imposed court orders).  Each
Region should develop and execute a plan to implement this Directive so that all
elements will be in place by April 30,1990. By no later than May 30, each Region
should submit to me a memorandum detailing the steps they have taken to
implement the Directive. In addition, we intend to review its implementation
during this year's audits of the Offices of Regional Counsel.

     The Directive was developed after an extensive review of current Agency
requirements and practices conducted, over the last nine months, in consultation
with the Enforcement Management Council and the Enforcement Office Directors.
We appreciatrthe efforts of the Regional and Headquarters offices, which made
significant contributions to the study and to the development of the requirements
outlined in this Directive. The resultant Directive outlines the basic requirements
thai: a:e necessary to effectively manage our consent decree tracking and follow-up
responsibilities and should be used as a supplement to the Agency "Manual on
Monitoring and Enforcing Administrative and Judicial Orders", which OECM will
soon be publishing.

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                                     -2-
     There are a few requirements from the Directive that I would like to highlight.
The Directive emphasizes the need for adequate documentation of each violation
and the selection of the Agency's enforcement response in response to a violation.
The documentation requirement is handled through the use of a form which has
been kept basic so as to not cause a resource drain on Regional resources.  The
Directive also lays out a requirement for database management but provides each
Region with maximum flexibility on selecting the appropriate method of
maintaining its database based on its caseload and computer capabilities.  Finally, the
Directive requires that the Regional Program  Division and the Office of Regional
Counsel jointly select the Agency response to a consent decree violation, with the
decision made at the Branch Chief or higher level in keeping with the seriousness
associated with consent decree violations.

      Fulfilling the requirements of the Directive should allow us to successfully
address the increasing workload associated with the growing number of judicial
consent decrees.  We will soon be discussing with the Headquarters Enforcement
Office Directors the appropriateness of applying elements of these judicial Directive
requirements to at least some classes of administrative enforcement orders.

     Each Region currently reports quarterly on the status of each active consent
decree as part of the Agency's STARS system. OECM would like to move to
oversight of Regional consent decree tracking and follow-up implementation
through our existing Regional audits, rather than through the STARS system.  We
will assess the Regions' success in implementing this Directive with the goal of
dropping this activity as a STARS reporting measure in FY1992.  We will also be
working with the Headquarters Enforcement Office Directors to include consent
decree tracking and follow-up activity in their Regional audit programs. As we
move to drop the STARS reporting requirements, Regions must assure that their
consent decree tracking systems have the capacity to provide timely information or
reports on the compliance status of their consent decrees to respond to information
requests that might occasionally be made by Agency management or in response to
outside inquiries.

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                                    -3-
     OECM is available to provide assistance to you in implementing this Directive.
Rick Duffy, Chief of the Compliance Evaluation Branch, or Bill Watt of his staff are
available to assist the Regions on the technical and management requirements and
can be reached at 382-3130. Regions interested in exploring the option of using the
consent decree tracking database management system developed by the National
Enforcement Investigation Center ^the NEIC-CDETS) should contact Rob Laidlaw at'
776-3210.

Attachment

cc   Headquarters Enforcement Office Directors
     Deputy Regional Administrators, I-X
     Regional Counsels, I-X
     Associate Enforcement Counsels
     Acting Director, NEIC
     Regional Program Division Directors, I-X

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Judicial Consent Decree Tracking
     and Follow-up Directive

           January 1990
  Office of Enforcement and Compliance Monitoring
    U.S. Environmental Protection Agency

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                 CONSENT DECREE VIOLATION AND FOLLOW-UP FORM
                            PART A:  REPORT OF VIOLATION
Case Name:
                 Program/Statute:
                   EPA Docket #
Requirement(s) in violation:
 Requirement due date:	
 Requirement was completed late:
 Comments:     •	
	  Requirement not completed:
 (when)                              (check)
 Violation documented by:   Signature/date:
                        Print name:
                        Title/organization:
D Type of enforcement action planned:
U Enforcement action determined not to be appropriate for the following reason(s)
                              Program Division
                           Office of Regional Counsel
Concurrences by:
         Name /signature:
        Organization title!
                Date:
                                                                             EPA-OECMForm

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                                  Judicial Consent Decree Tracier.3 Directive
                                Questions concerning this Directive or requests
                                   for additional copies can be directed to:

                                  Chief, Compliance Evaluation Branch
                           Of free of Compliance Analysis and Program Operations
                             Office of Enforcement and Compliance Monitoring
                              U.S. Environmental Protection Agency

                                          401 M Street S.W.
                                       Washington, D.C. 20460
                                           (202-382-3130)

                                      U.S. EPA Mail Code LE-133


OECM-EPA                                                                                   January 1990

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                            Judicial Consent Decree Trackir.g Directive
         JUDICIAL CONSENT DECREE TRACKING AND FOLLOW-UP DIRECTIVE

     PURPOSE

          This directive is provided to clarify and supplement existing Agency
     requirements and guidance for judicial consent decree tracking and follow-up.
     Agency managers responsible for consent decree tracking and follow-up activities
     must implement the requirements of this directive. Managers are also responsible
     for fulfilling any additional requirements for consent decree tracking and follow-up
     that are issued by National Program Managers.  This Directive is effective April 30,
     1990.  For purposes of this Directive, the term "consent decree" includes judicially
     imposed court orders.

         This directive prescribes judicial consent decree tracking and follow-up
     requirements for the following areas:

          1. Implementing the Agency Guidance on Certification of Compliance with
            Enforcement Agreements
          2. Regional consent decree tracking and follow-up database management
          3. File documentation of consent decree violations
         4. Decisions on Agency follow-up to violations
            A. Responsibility for decision
            B. General criteria for making follow-up decisions
            C. File documentation of follow-up decisions
          5. Maintaining data on the current status of EPA consent decrees
          6. Termination of consent decrees and dosing cases

     BACKGROUND

     Consent Decree Tracking Responsibilities:

          Consent decree tracking and follow-up is conducted by each Regional Office
     under the direction of the Regional Administrator. Within each Region, most
     responsibilities are shared between the Office of Regional Counsel (ORC) and the
     Regional Divisions responsible for program compliance activity.  Generally, the
     responsibilities are divided within each Region as follows:

     Regional Ftogram Divisions

          Regional Program Divisions are responsible for the overall management and
     direction of the Regional compliance program in accordance with the policies and
  ,   . procedures of the Agency and each National Program Office. In that role, they are
     responsible for the following regional consent decree tracking and follow-up
     activities:

          1. Assuring, along with ORC, that proposed consent decree agreements contain
          provisions/milestones that maximize the Region's ability to determine
          compliance status.

OECM-EPA	                                               January 1990

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                              Judicial Consent Decree Tracking Directive
          2. Determining compliance with the consent decree requirements through the
          use of announced and unannounced inspections and the receipt and review of
          deliverables.

          3. Determining whether there are violations of the consent decree and
          notifying the ORC of each violation.

          4. Maintaining a database of consent decree status which tracks completion of
          consent milestones and denotes violations. (Can be a component of a
          Region-wide consent decree database system.)

          5. Determining (jointly with the ORC) the appropriate Agency response to each
          violation.

          6. In concert with the ORC, maintaining complete file documentation of
          consent decree violations and the subsequent follow-up activity, including
          documentation of all consent decree violations and follow-up decisions. (File
          documentation must be maintained in whatever file or files the Region uses as
          the official case file, whether in a separate Program file, ORC file or a common
          Program-ORC file.)

          7. Notifying the ORC when all the requirements of the consent decree have
          been met so that the ORC can track and assist in the termination of the
          decree according to the terms of the decree.

     Offices of Regional Counsel:

          The Office of the Regional Counsel in each Region is responsible for the
     following Regional Office consent decree tracking and follow-up activities:

          1. Assuring that each settlement agreement complies with the "Guidance on
          Certification of Compliance with Enforcement Agreements" (July 25,1988
          memorandum from Thomas L. Adams to AAs, RAs, and RCs).

          2. Obtaining a copy of the entered decree and providing it to the appropriate
          regional program compliance office and to the NEIC Central Depository in a
          timely manner. A copy must also be provided to the Financial Management
          Office (FMO) in the Region when the decree requires a penalty payment.

              [ The regional FMO, after receiving a copy of the entered decree, will enter the
            penalty amount into the Integrated Financial Management System (IFMS). EPA policy
            requires that all judicial penalty amounts be recorded in the IFMS as "accounts
            receivable" and that they be tracked as receivables until collected or terminated. The
            Land and Natural Resources Division at DOJ is the responsible entity for monitoring
            judicial penalty debts and notifying EPA's Financial Management Division of the
            status of penalty payments. This information is placed in the IFMS so that Regions can
            determine if penalties requirements of the decree have been met The program
            database as well as the Enforcement DOCKET database should contain a
            milestone/requirement for tracking penalty payment.]
OECM-EPA                                                                        January 1990

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                            Judicial Consent Decree Track ing Directive
         3. Determining (jointly with the Regional Program Divisions) the appropriate
         follow-up action the Region will take in response to a violation of the decree.

         4. Providing legal support and services to the programs, as necessary, to enforce
         the consent decree.

         5. In concert with the Program Division, maintaining complete file
         documentation of consent decree violations and the subsequent follow-up
         activity, including documentation of all consent decree violations and
         follow-up decisions. (File documentation must be maintained in whatever file
         or files the Region uses as tr .3 official case file, whether in a separate ORC file,
         Program file, or a common Program-ORC file.)

         6. Maintaining and reporting data on the status of active consent decrees as
         might be required by the Agency management and accountability systems.
                  •
         7.  Assisting in obtaining the termination of consent decrees which have
         been successfully fulfilled, including updating the Agency DOCKET
         database to reflect current status.
                   CONSENT DECREE TRACKING REQUIREMENTS
     1.  IMPLEMENTING THE AGENCY GUIDANCE ON CERTIFICATION OF
        COMPLIANCE WITH ENFORCEMENT AGREEMENTS

     Background:

          Certification requirements were prescribed in the July 25,1988 memorandum
     from Thomas L. Adams Jr. to Assistant Administrators, Regional Administrators
     and Regional Counsels, "Guidance on Certification of Compliance with Enforcement
     Agreements." This Guidance addresses the inclusion of compliance certification
     language (in which a responsible official personally attests to the accuracy of
     information contained in compliance documents made available to EPA pursuant to
     the terms of a settlement agreement) and the need for including precise
     documentation requirements for self-certifying provisions of the decree.

     Requirements:

          Each Region must take steps to insure that all staff involved in drafting and
     negotiating consent decrees are fully aware of the requirements of the July 25,1988
     guidance memorandum and this Policy. (While that guidance applies more broadly
     than to consent decrees, the discussion in this Policy will refer only to consent
     decrees, consistent with the scope of the rest of the document.)

          Staff involved in drafting consent decrees must incorporate the guidance for
     documentation of compliance and for certification by a responsible official unless


OECM-EPA      	     3                        	    January 1990

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                            Judicial Consent Decree Tracking Directive
      they affirmatively determine and document that the policy is not applicable to a
      specific case. Therefore, each consent decree should specify that all future reports by
      the settling party to the Agency, which purport to document compliance
      with the terms of the decree, shall be signed by a responsible official. The need for
      certification and documentation requirements should be raised early in the
      negotiation and drafting process.

          Regional managers who review and approve drafted consent decrees must
      assure that the Guidance has been adequately incorporated or determine that the
      Guidance is not applicable for the specific case.

          Staff and managers within the OECM Associate Enforcement Counsel Offices
      must also review drafted consent decrees for inclusion and/or applicability of the
      Guidance. Implementation of the certification and documentation requirements
      will be a component of the ongoing oversight and periodic reviews conducted by
      OECM.
     2.  REGIONAL CONSENT DECREE TRACKING DATABASE MANAGEMENT

     Background:

          Regional Program Divisions are responsible for tracking compliance with active
     consent decrees once the decree has been entered by the Court The ORC is
     responsible for obtaining a copy of the entered decree and providing it to the
     Program Division and the Financial Management Office (for penalty tracking). If the
     decree has been entered but a copy has not yet been made available, the program can
     use the lodged decree during the interim, if it is known that the final decree was not
     changed.

          Compliance tracking is accomplished through the receipt of reports and other
     deliverables from the consent decree partiesTLid tlircugh the use of announced and
     unannounced inspections. In order to determine whether a party is currently in
     compliance with the consent agreement,  the program compliance staff must
     compare the requirements of each decree with the information gathered through
     inspections and deliverables. In the case of deliverable items, the compliance staff
     should determine if the submission adequately meets the decree requirements.
                •*-,
          Good database management is an important element for effective and timely
     tracking and reporting of case status.  This policy outlines requirements for the
     consent decree databases that are used to track consent decrees for each Regional
     program. Additional elements may be required by each of the National Program
     Offices.

     Requirements:

          Each program responsible for tracking consent decree compliance status must
     maintain a consent decree database (file/record). Each program database must


OECM-EPA                                                                     January 1990

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                            Judicial Consent Decree Tracking Directive
     include the following information for each active decree:  case name and
     enforcement civil judicial docket number, statute/program, all required milestones
     and their due dates, and a block for inserting the date each milestone was completed.

          The consent decree database can be manual, on a personal computer or
     included as a part of a national compliance database such as the CDS of the Air
     Program. The database could also be maintained centrally, as in Region II, where the
     ORC maintains a database of all regional consent decrees using the NEIC - CDETS
     capability.  Each Region can choose what database type system(s) to use. For
     programs with only a few consent decrees to track, a manual system may be
     sufficient. Regional programs may opt to use the national compliance database
     depending on its specific capabilities.

          The consent decree database must be maintained in three ways for it to be used
     effectively. Milestones for all decrees must be entered (and revisions, if applicable,
     in the case of amended decrees). On a regular schedule (not less than quarterly),  all
     currently due (and overdue) milestones must be extracted from the system and made
     available to staff and supervisors.  This use as a tickler system will alert staff as to
     what actions are required to be checked on. Finally, the dates for completed
     milestones must be put into the database on a regular basis (suggested monthly
     updates).

          Maintaining this database in a central location will allow a program easy access
     to the status of all its decrees, the ability to retrieve all due milestones and a complete
     historical record of each decree as staff turnover and assignment changes occur. It
     will also provide documentation of case history for audits or other oversight activity.
     3. FILE DOCUMENTATION OF VIOLATIONS

     Background:

          Program Divisions are responsible for determining if a consent decree violation
     has occurred. Any milestone not complied with by the due date of the consent
     decree constitutes a violation, regardless of the substantive impact of the deviation
     from the consent decree requirement In certain cases. Program Divisions may need
     to consult with the ORC in determining whether a violation has occurred (e.g.,
     where a dips of force majeure has been made).
               "fe
     Requirements:

          Regional Program Divisions must notify the ORC of each violation of an active
     consent decree. A violation occurs when any milestone is missed (i.e. a report that is
     one day late is a violation), although there may be instances where, as a matter of
     priority, no formal enforcement action is taken. In addition, a record of the violation
     must be placed in the official Regional case file (see copy of form attached).
OECM-EPA                                                                      January 1990

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                            Judicial Consent Decree Tracking Directive
     4- DECISIONS ON AGENCY FOLLOW-UP TO VIOLATIONS

     Background:

          When a violation occurs, the Region must determine the appropriate Agency
     response.  In some cases, the violation may not pose a threat to public health or the
     environment or jeopardize the party's ability to meet subsequent milestones or the
     final compliance date. In such instances, after a review including the criteria
     discussed in subsection C below, the program office and ORC may jointly decide that
     no follow-up action is required or that a non-formal response may be appropriate.
     Other violations will be more serious and the program and ORC may decide to take a
     formal enforcement action such as seeking stipulated penalties or initiating a
     contempt action. For all violations it is important for the Agency to document the
     decision process within the case record. For all violations, the responsibility for
     determining the appropriate response action is shared by the Regional Program
     Division and the Office of Regional Counsel.

     Requirements:

          A. Responsibility for decision:

            Once a violation occurs, the Program and the ORC must jointly determine
     the Agency response. Given the seriousness of consent decree violations,
     concurrence must occur at no lower than the Branch Chief level in both Offices.
     Disagreements should be elevated to senior management  On the rare occasion
     when the two offices cannot agree, the issue will be resolved at the RA or DRA level.

          B. File documentation of follow-up decisions:

            The decision concerning how the Agency will respond to a violation must be
     documented in the official Regional case file. The documentation (copy of form
     attached) must include the decision made and the reason for the decision. The
     documentation must also include the signatures of the responsible Program Office
     and ORC Branch Chiefs (or higher level).
          C General Criteria for follow-up decisions:
                    9 Agency enters into a consent decree we expect the defendant to
     comply. ^^itr* compliance with the decree very seriously and expect all parties to
     take all steps necessary for timely compliance. As a result, if they are in violation, we
     will normally respond for the purpose of remedying the violation, obtaining a
     penalty, or both. However, given the need to set priorities, we may not choose to
     take a formal action in every instance. The Region is delegated authority to decide
     what follow-up action, if any, to take. The decision not to take a formal action is a
     serious judgment required to be made jointly by the Regional Program Division and
     the Office of Regional Counsel at the Branch Chief or higher level.
OECM-EPA                                                                     January 1990

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                            Judicial Consent Decree Tracking Directive
         In selecting the appropriate response, the following factors/criteria might be
     considered.

             Environmental Harm Caused by Violation:  What is the level of risk to
         human health and to the ambient surroundings for continuing
         noncompliance?
             Duration of the Violation: How long has the violation continued? Has the
         violation been continuous or interrupted? Has the violation been corrected?
             Good Faith/Bad Faith (Compliance history): Was the violation deliberate?
         Has the party been notified that it was in violation and continued to violate?
         Has the party demonstrated good or bad faith in its past efforts to comply or
         respond to Agency efforts? Is there a pattern of violations which suggests
         inattention to its compliance obligations, even though the individual
         violations are not/ in themselves, of major concern?
             Deterrence Value;  Will an action deter future violations?
             Ability to Respond: Will the enforcement action result in compliance?
         Will the facility meet its final compliance date, even though it missed an
         interim date?
             Economic Gain: Has the violator gained an economic advantage over its
         competitors as a result of the violation?

         Violations for which a decision not to take a formal action based on competing
     priorities might be appropriate would generally find the party on the positive side of
     the factors above (i.e. no or limited environmental harm from the violation, good
     compliance record, etc). Situations where the Agency might exercise its discretion
     not to take an action might include:

            - Late reporting with no environmental consequence and without a
          past pattern of delay or noncompliance.

            - Missed milestone, not a major requirement, with expectation they will be in
          compliance with/by the next milestone

            - Violation of an interim limit, magnitude of the exceedence is minor, with
          compliance now achieved or anticipated shortly.
     Back]
          Currently, each ORC is responsible for providing consent decree status reports
      each quarter to OECM as part of the Agency SPMS system. In most Regions, the
      information for this report is collected from each program and combined into a
      Regional report
OECM-EPA	January 1990

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                           Judicial Consent Decree Tracking Directive
    Requirements:

         The ORCs will continue to be responsible for maintaining information on
    regionwidc status of consent decrees and providing Regional reports to OECM, as
    required. The specific nature of these reports may change from the current STAR
    measure. Regional Program Divisions are responsible for supplying
    program-specific information or reports to ORC that might be needed to fulfill
    national reporting requirements in addition to meeting the requirements of their
    National Program Office.

    6. TERMINATION OF CONSENT DECREES AND CLOSING OF CASES

    Background:

         A judicial enforcement case with a consent decree is successfully completed
    when all the requirements of the consent decree, including penalty payments, have
    been met and the termination clause satisfied. At that point, the consent decree
    should be terminated in accordance with the terms of the decree. Agency databases
    and status reports need to accurately reflect the current status of cases (including cases
    where the requirements of the decree have been fully met, cases for which
    termination of the decree is due, and cases which have been dosed after consent
    decree termination). Accurate data are needed to report the status of active decrees
    and for planning, budgeting and other management purposes.

    Requirements:

         Program Divisions, as part of their responsibility for tracking consent decree
    compliance status, must notify the ORC when all the requirements of the consent
    decree have been satisfied.

         The ORC is responsible for working with DOJ to effect the termination of the
     consent decrees, in accordance with the termination clause of the decree (timeframe,
     automatic, plaintiff or defendant motion). The ORC is responsible for tracking the
     termination status of inactive decrees and assisting the completion of plaintiff
     responsibilities, as appropriate.  The ORC is responsible for maintaining the current
     status of thcsf decrees in the Agency DOCKET system and dosing cases after
     terminal
OECM. EPA                          ^_____                             J-m-grlWO.

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TK.1-2

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          I MTU) M UKs hN\!K')N\U.NT\l PROTF.( TION \C.E\O
                         \*HIM.IOV o ( . :n^oo  -     -7
                             25 MB
MEMORANDUM

SUBJECT:  Guidance or. Certification of Compliance with
          Enforcement Aareements
                                                      \
F»OM:     Thomas L. Adarrs, Jr. *-^™*' •*•*• ^- «-*•*•
          Assistant administrator for Enforcement
            and Comoliance Monitoring

TO:       Assistant Administrators
          Reaional Administrators
          Reaional counsels
I.   BACKGROUND

     Over the past several years, EPA has initiated record
numbers of civil judicial and administrative enforcement actions.
The vast majority of such actions have been resolved by judicial
consent decree or administrative consent order.

     The terms of many of these settlements require the violator
to oerform specific tasks necessary to return to or demonstrate
comoliance, to accomplish specific environmental cleanup or other
remedial steps, and to take prescribed environmentally beneficial
action.

     Settlement aqreements typically specify that the violator
oerform certain reauired activities and thereafter report their
accomolishment to EPA.  Verification that the required activities
have actually been accomplished is an essential element in the
overall success of the Aqency's enforcement program.

II.  PURPOSE

     The focus oe this advisorv Guidance is or. verification of
comoliance with settlement aareements wnicn reauire specific
oerformance to achieve or maintain compliance with a regulatory
standard.  EPA has onaoina responsibility for ensuring that
settlina parties are in comnliance with the terms of their
neaotiat»i aareements.  To tnis end, the Agency may require
that a resnonsible official (as that term is defined herein)
oersonally attest to tn* accuracy o: information containea in
comoliance documents made available to EPA oursuant to the
terms of a settlement aare°ment.

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                               -2-
      The inspection programs of  EPA and other  federal  regulatory
 agencies are based of  necessity  on  the  concept  that  a  limited
 number of regulated facilities will be  inspected  each  year.
 Conversely,  this  means tnat  a large number  of  regulated  parties
 can operate  for extended  periods of time without'being the
 subject  of an on-site  insbection by EPA staff.  Hence, it is
 crucial  to ensure that all  reauired compliance  reports are
 received from the. regulated  facility in a timely  manner.  In
 addition—and eaually  as  imoortant—timely  review of such
 reports  must  be unaertaken  by EPA to ensure that  the reports
 are adeauate  under the terms of  the settlement  agreement.

      EPA experience  shows that the  majority of  regulated parties
 make aood faith efforts to  comely with  their responsibilities
 unoer  the environmental laws and  regulations.   Nevertheless, the
 Aaency must have  effective monitoring procedures  to detect
 instances of  noncompliance with  a settlement agreement.  A vital
 component of  these orocedures will  be to ensure that the environ-
 mental results obtained in the enforcement action are  indeed
 achieved and  that  criminal sanctions, where appropriate, are
 available to  respond to instances of  intentional  misrepresentation
 or  fraud  committed by  such violators.

     EPA  will ensure that all responsible officials entering
 into settlement aoreements with  the  Agency are  held accountable
 for their subseauent actions and  the actions of any subordinates
 responsible for the  information contained in compliance reports
 submitted to the Agency.


 III. GUIDANCE

     A.   Certification by Responsible corporate Official

     The  terms of  settlement agreements, as well  as any certifi-
 cation language in subsequent reports to the Agency, should
 be drafted in a manner to trigger the sanctions of 18 u.s.c.
 «1001,_1/ in the event that  false information is  knowingly and
willfully submitted  to EPA.  Submission of such false  information
 _!/  United States Code, Title 18, Section 1001 provides:

          "Whoever, in any matter within the jurisdiction
     of any deoartment or agency of the United states know-
     ingly and willfully falsifies, conceals or covers up
     by trick, scheme, or device a material fact, or makes
     any false, fictitious or fraudulent statements or
     representations, or makes or uses any false writing
     or document knowing the same to contain any false,
     fictitious or fraudulent statement or entry, shall be

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                              -3-
mav also expose the defendart(s) in judicial consent decree
falsification  Incidents to both civil and criminal contempt
proceedings.

     This provision of law is a key sanction within the federal
criminal code  for discouraqina any person trom intentionally
deceivina or misleading the united states government.

         1.  Signatories to Peports

     Settlement agreements should specify that all future reports
by the settling party to trie Agency, which purport to document
compliance with the terms of any agreement, shall be signed by
a responsible  official.  The term "responsible official" means
as follows:]-/

             a.  For a corporation;  a responsible corporate
officer.  A responsible corporate officer means:  (a) A president,
secretary, treasurer or vice-president of the corporation in
charge of a principal business function, or any other person who
performs similar policy- or decision-making functions for the
corporation, or (b) the manager of one or more manufacturing,
production, or operating facilities employing more than 250
persons or having gross annual sales or expenditures exceeding
S35 million (in 1987 dollars when the consumer Price Index was
345.3), if authority to sign documents has been assigned or
delegated to the manager in accordance with corporate procedures.

             b.  For a partnership or sole proprietorship;  a
general partner or the proprietor, respectively.

         2.  when to Peouire a certification statement

     The reouirement for an attestation by a responsible
official is always useful as a matter of sound regulatory
manaaement practice.  Such a requirement is more urgent,
(Note 1,  cont'd)

     fined not more than 510,000 or imprisoned not more than
     five years,  or both.
                         "
There ar» four basic elements to a Section 1001 offense: (1) a
statement; (2) falsity; (3) the talse statement be maae "know-
inaly and willfully"; and (4) the false statement be made in a
"matter witnin tne jurisdiction of any department or agency of
the United States".  United States v. Marchisio, 344 F.2d 653,
666 (2d Cir.  1965) .

 2/ For NPDFS matters, the definitions of "responsible official"
and "certification", as set fortn in 40 CFR 5122.22, may oe used
as alternative lanauaae to this auidance.

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                              -4-
 however,  where  a  regulated  party  has  a  history  of  noncompiiance
 or  where  prior  violations place one's veracity  into question.^j/


          3.  Terms of  a Certification Statement

     An example of an  appropriate certification statement for
 inclusion  in reports suomitted to the Agency by regulated parties
 who are signatory to a settlement agreement is as  follows:


                "I certify tnat tne information contained
           in or accompanying this (submission) (document)
           is true, i.'curate, and complete.

              "As to (the)  (those) identified portion(s)
           of this (submission) (document) for which I
           cannot personally verify (its) (their)  truth
           and accuracy, I  certify as tne company official
           havina supervisory responsibility for the
           person(s) wno, acting under my direct instructions,
           made the verification, thar -.his information is
           true, accurate,  and complexr." */


     B.  Documentation to Verify Compliance

     Typical settlement agreements require specific steps to
be undertaken by tne violator.  As EPA statf members engage in
settlement negotiations and the drafting of settlement documents,
they should identify that documentation which constitutes the
 3/  While oersonal liability is desirable to promote compliance,
it should be noted that corporations may be convicted under 18
U.S.C.  §1001 as well.  A corporation may be held criminally
responsible for the criminal acts ot its employees, even if the
actions of the employees were against corporate policy or express
instructions.  See U.S. v. Automated Medical Laboratories, 770
F.2d 339 (4th Cir. 1985); U.S. v. Richmond, 700 F.2d 1183 (8th
Cir. 1983).  Moreover, both a corooration and its agents may
be convicted for the saire offense.  See U.S. v. Basic Construc-
tion Co.. 711 F.2d 570 (4th Cir. 1983).

 4/  it is inevitable that in negotiating consent aareements,
counsel tor respondents will seek to insert lanauage in tr.e
certification statement as to the truth of the sutmissior.s to be
to tne "best information" or to tne "fullest understanding" or
"belief" of the certifier.  Such qualifiers should not be
incoroorated, since tne provisions of 19 U.S.C. S1001 provide
for prosecution for makino false statements knowingly and
wiilrullv--not for formina erroneous oeliets, etc.

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most  usetul evidence that the action required nas actually been
'undertaken.  The roost useful evidence would be that information
or Documentation that best and most easily allows tne Agency
to verify comoliance with the terms (including milestones) of
a settlement agreement,  examples of documentation to substantiate
comoliance include, but are not limited to, invoices, work
orders, disposal records, and receipts or manifests.

      Attachment A  is a suaqested type of checklist that can be
developed tor use  within each program area._5/  The checklist
includes examples  or specific documentary evidence which can be
reauired to substantiate that prescribed actions have, in fact,
been  undertaken. •

IV.   SUMMARY

      This auidance is to orovide assistance to EPA employees
who negotiate and  dratt settlement documents.   It is appropriate
when  circumstances so dictate that such documents contain
sufficient certification language for ensuring, to the maximum
extent possible, that all reports made to EPA, pursuant to the
terms of any settlement agreement, are true, accurate, and
comolete, and that such reports are attested to by a responsiblt
official.

      The Aaency must incorporate within its overall regulatory
framework all reasonable means for assuring compliance by the
regulated community.  The inclusion of compliance certification
language, suoported by precise documentation requirements, in
neaotiated settlement agreements may, in appropriate instances,
mean  tne difference between full compliance with both the
letter and the spirit of the law, and something less than full
compliance.  In the case of the latter, the violating party
is then subject to the sanctions of the federal criminal code.
Attachment A
 5/ EPA or a State may be unable to confirm the accuracy of
certifications for an extended period of time.  Therefore,
it is suagested that, whenever certification by a respondent/
defendant is reouired, the order/decree provide that "back-up"
documentation—such as laboratory notes and materials ot the
tvoes listed in the examoles in the text above—be retained for
an aooropriate period of time, such as three years.  See, tor
example,'the 3 year retention time in 40 CFR S122.4K j) (2 ) .

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                                    MFANS OF CERTIFYING COMPLIANCE
                                        WITH CONSENT AGREEMENTS
                                               (Examples)
     Action Peciuired By
     Consent Agreement
                                       Violator's uificial
                                       Certifies That:
     Documents Accompanying
     Certification;  	
•Purchase pollution control
    equipment.

•Installation

•onuoinn op^r^t ion and main-
   tenance
•Meet discharge  levels


•l.a*>pUjd transformers

•DO risk study

•Hi re
 •Use complying coatings

•Train employees  (e.g. , work
   prart ic*>s)
•s«-t  up <-nvi ronmental auditing
   uni i
                                 •Equipment purchased


                                 •Equipment installed and tested

                                 •Operating as required



                                 •Discharge levels have been met
 •Invoice
 •Invoice for'work with phototjrat>h

 •Continuous monitoring ld|»e
 •Periodic sample results
 •Maintenance of  records

 •Continuous monitoring tapes
 •Periodic sample results
                                 •Transformers have been labeled  |*Photographs

                                 •Study has been completed

                                 •Employees have been hired
I
|*Study report and recommendations
I
                                 •Verifying complying coatings
                                    are used
                                 •Employee training has been
                                    completed
                                  •Unit  has been established
                                  •orientation and instruction
                                     completed
                                A	.
{•Personnel records
(•Position descriptions
(•Entry on duty dates
(•Salary data
I
(•Documents to verify VOC content

(•Educational materials and record
    of employee attendance at
    training session

 •Same as above re:  personnel
 •Charter of audit group
          on
                   i>aqe)
                                          A'lTACHMKNT A

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 (continued from previous paqe)
                                    MEANS OF CERTIFYING COMPLIANCE
                                             CONSENT AGREEMENTS
                                              (Examples)
     Action Required By
     Consent Agreement
      Violator's Official
      Certifies That:
    Documents Accompanying
    Certification:
•Dispose of PCBs
•Replace PTB transformers
*Reoist»»r cost icide certifi-
   cat ion of applicator
        c.»  .-lied product from
   the market
•PCBs disposed of in lawful
   manner

•New transformers installed
•Applicator certification has
   been accomplished

•Removal has been accomplished
•Comply with asbestos removal
   and disposal regulations
•Monitor waste stream
•Siurine removal
•Conduct oroundwater monitorinq
•collect and analyze soil
•Copies of manifests
•Copies of purchase and instal-
   lation receipts

•Copies of certificates
•Copies of correspondanee with
   customers and documentation
   of removal
•Copies of customer lists for
   independent verification by
   EPA and states
•Compliance with asbestos removal *List of locations of all jobs
   and disposal regulations on
   a job-by-job basis

•Waste stream has been properly   *Discharge Monitoring Report
   monitored
•Sludge removed by milestone
   deadline

•Groundwater monitoring accom-
   plished in appropriate manner

•Soil samples collected and
   analyzed in specified manner
•Copies of invoices on sludge
   removal

•2/A (quality analysis) tests;
   certification by laboratory

•Same as above
        contaminated soils and
   (1isiio;-,i- of in compliance
   with I'CHA
•Contaminated soils removed and  |*Copies of contract documents
   disposed of in compliance   -,|   and manifests
   with RCRA                     > -

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TK.1-3

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                                                          Tt.l-3
         I'MTED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON, D.C. 20460



                           MAY  3 D 1985
                                                     OFFICr OF
                                                       \Dro
                                                        MOMTOKIVb
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 Counsel?' meeting
last January in Denver and is designed to aid my s.dff 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 ouestions 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 reouesting EPA
 Headouarters to review the attached litigation report and
 refer it to the Department of Justice, or in the case of
 direct referrals reauesting DOJ to file a civil action.

      Attach to this cover letter a very brief description of
 the followina in a data sheet.  Certain items may not be
 appropriate in every case.


 1.  The statute(s) and reoulation(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.

 A.  The proposed relief to be souaht, 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 adr.inistrat i ve enforcement actions taken, and
     necotiat ions,   if any.

 6.  The sianificant national or precedential legal or factual
     issues.

 7.  Pate 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.

10.  Any other aspect of the case which is significant or should
     be hiohlighted including any extraordinary resource demands
     which the case may reauire.

11.  The identity of lead regional legal and technical personnel.


             [PLEASE SEE ATTACHED MODEL DATA SHEET]

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                      MODEL DATA SHEET
1.  The statute(s) and reoulation(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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                             -2-

  Mortel  r>ata  Sheet  -  Cont.


  *.  The  recent contacts with the defendant(s), including any
     previous artninistrative enforcement actions taken, and
     neaotiations, if any.
     The sinnificant national or precedential leqal or factual
     issues.
 "7.  Pate of inspection, information response, or receipt of
     evidence of violation which led to decision to initiate
     enforcement proceedinns .
 P.  Pate, if applicable, that the technical support documents
     from the prooran, or support documents necessary for
     preparation of a referral reach the Peaional Counsel's
     office.
 9.  Pate referral is sianed by Peaional Adminstrator.
IP.  Any other aspect of the case which is sionificant or should
     be hiohliohted includinq any extraordinary resource demands
     which the case may reouire.
11.  The identity of lead regional leaal and technical personnel.

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GM - 41, was revised on August 25, 1986.   The 1984



version has been replaced with the 1986 version.



Appendix A from the 1986 version is attached to the



policy as part of GM-41.  Appendix B, EPA Policy on



Implementing Nationally Managed or Coordinated



Enforcement Actions is already contained in this



Compendium as GM-35.  Appendix C, Division of Penalties



with State and Local Governments is  already contained



in this Compendium as GM-45.

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TK.1-4

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                                            Tk.l-4
CONSENT DECREE TRACKING SYSTEM GUIDANCE
EPA GENERAL ENFORCEMENT  POLICY  I GM - 19
                      UNITED STATES ENVIRONMENTAL
                           PROTECTION AGENCY
                      EFFECTIVE DATE:
                                      DEC 20 1983

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       '
    v
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, DC 20460
                           DLC *0 1983
                                                        erne* or
                                                    •NFOMCKMCNT COUNIEl.
MEMORANDUM

SUBJECT:

FROM:


TO:
Concent Decree Tracking System Guidance
  V  f*    J  V r~\  *trJ^Jt
CourtSieypHce, Assistant Administrator
Office of Enforcement and Compliance Monitoring

Assistant Administrators
Associate Administrator for Policy
   and Resource Management
Associate Administrator for Regional Operations
General Counsel
Associate Enforcement Counsels
Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
     I am forwarding to you for use by you and your staff
enforcement guidance on the use of the consent decree tracking
system developed by NEIC and OLEP.  This tracking system is
designed to enable the Agency  to  track the compliance of
consent decrees for all media  on  a national basis.

     This guidance was circulated in draft form to the Regional
Administrators and to the program Assistant Administrators for
review and comment.  I believe the guidance will help ensure
proper use of the consent decree  tracking system, better
enabling EPA to meet its legal responsibility to the courts of
ensuring that the terms of each consent decree are being met.

     This consent decree tracking system will be only as good
as the data that is put into it.  In order to ensure that the
consent decree data in the system is kept up to date, I have
asked Lew Crampton to incorporate a requirement to maintain
the tracking system into the Administrator's Management
Accountability System (AMAS).  Staff from Lew's office and
mine will jointly contact each Assistant Administrator's
office in the near future to formally negotiate the measure,
so that it can be included in  future AMAS reports.

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                             -2-
     I also have attached another guidance document developed
by my office entitled, "Implementation of Direct Referrals
for Civil Cases Beginning December 1, 1983".  This document
provides guidance to EPA Headquarters and Regional personnel
on making direct referrals to DOJ from EPA Regional offices
for certain categories of cases.  Both of these documents
should be added to your copy of the General Enforcement
Policy Compendium which was distributed in March of 1983.
A revised table of contents and index for the Compendium are
also attached.

     If you have questions concerning this guidance, please
contact Mike Randall at FTS 382-2931 or Gerald Bryan at
FTS 382-4134.

Attachments

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                      TABLE OF CONTENTS



                                                      PAGE



INTRODUCTION	 1



Scope and Exclusions	 2



TRACKING SYSTEM	 4



Tracking System Objectives	 4



Key Tracking System Components	 4



  1. The Repository....	 5



  2. The Consent Decree Library	 5



  3. Compliance Monitoring	 6



  4. Compliance Tracking	 7



Tracking System Operation	 8



OFFICE RESPONSIBILITIES	 10



  1. National Enforcement Investigations Center	 11



  2. Regional Administrator's Office	 12



  3. Office of Enforcement and Compliance Monitoring.. 13

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INTRODUCTION

     The Environmental Protection Agency (EPA) places a high
priority on consent decree compliance.  This is consistent
with the Agency's Congressional mandate to enforce the nation's
environmental laws.  It is also consistent with EPA's legal
responsibility to the Courts of ensuring that the terms of
each consent decree are met properly.
     A uniform national approach to consent decree compliance
tracking can enhance the Agency's consent decree enforcement
efforts.  This uniform approach should incorporate ah
automated management information system intended primarily
for consent decree compliance tracking.  This will enable
Agency managers to:

          • Address consent decree compliance problems quickly
            and effectively.
          * Assess overall national trends in EPA's consent
            decree enforcement efforts.
          0 Respond quickly and accurately to Congressional
            and public inquiries concerning the compliance
            status of the Agency's consent decrees.

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                              -2-

      Until recently,  EPA had no uniform automated  information
 system intended primarily for consent  decree  compliance
 tracking.   Some Agency offices do  use  automated  information
 systems  to track source compliance generally.    However, the
 use  of these  systems  varies  throughout the Agency, making it
 difficult  to  integrate compliance  data.  Moreover, some
 offices  track  consent decree  compliance  by hand, resulting
 in lengthy information retrieval tiroes.
     On  August  4,  1982,  EPA managers met to discuss establishing
 a uniform  national approach  to consent decree compliance
 tracking which  incorporates the use of an automated information
 system intended  primarily  for  tracking consent decree
 compliance.  They agreed that  this  tracking system should
 build upon, rather than  replace, existing information systems
maintained by various  Agency enforcement offices.
     Subsequent  to that meeting, the National Enforcement
 Investigations Center  (NEIC),  working closely with the Office
of Legal and Enforcement Policy  (OLEP), developed ideas for
such a tracking  system.  This  document describes the proposed
tracking system  and Agency office  roles in implementing and
maintaining it.
Scope and Exclusions

     This tracking system will include information on all
court entered judicial consent decrees in enforcement cases to

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                             -3-

which EPA is a party, as well as the status of compliance
efforts required by these decrees.  It will not include:

          • State consent decrees to which EPA is not a party.
            This includes cases in which EPA nay have a
            continuing interest in the compliance status of
            the decree even though, for example, EPA originally
            deferred the underlying enforcement action to
            appropriate State authorities.  This topic will be
            discussed generally in guidance entitled,
            •Coordinating Federal and State Enforcement Actions*.
          * Federal Facilities Compliance Agreements.  These
            agreements are negotiated with Federal facilities
            to bring them into compliance with applicable
            environmental statutes.  Executive Order 12088
            provides a non-judicial mechanism for negotiating
            these agreements.  Within EPA, the Office of
            Federal Activities (OFA) has the lead responsibility
            for tracking compliance with these compliance
            agreements.  OFA is developing guidance on this
            area entitled, "Federal Facilities Compliance
            Program - Resolution of Compliance Problems".

     Also, considerations in selecting an appropriate enforcement
response to a consent decree violation are discussed generally
in forthcoming guidance entitled, "Enforcing Consent Decree
Requirements".

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                              -4-
 TRACKING SYSTEM
 Tracking  System Objectives

      This uniform national  approach  to  consent  decree  compliance
 tracking  seeks  to achieve the  following objectives:

           • Facilitate  consent decree enforcement by uniformly
            tracking  the compliance  status of all EPA  consent
            decrees.
           0 Keep  senior ;Agency managemement informed of the
            compliance status of all EPA consent decrees.
           • Provide timely, accurate information upon  request
            to Congress and the public  concerning the  compliance
            status of EPA consent decrees.
Key Tracking System Components

     To achieve these objectives, the tracking system relies
on four key components:
                   i
          1. The Repository
          2. The Consent Decree Library
          3. Compliance Monitoring
          4. Compliance Tracking

These components are described below.

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                             -5-
1. The Repository
     The Repository is a collection of physical copies of over
425 EPA consent decrees NEIC has on file.  NEIC assembled
this collection with the assistance of the Regional Offices, the
Department of Justice (DOJ), and the Federal Courts.  NEIC
is continuing its efforts to complete the collection of consent
decrees to be filed in the Repository.  To facilitate this
effort, the Regional Counsels should forward copies of all
new consent decrees to NEIC for inclusion in the Repository.
     NEIC maintains the Repository and, upon request, can
provide a copy of any EPA consent decree on file to requesting
Agency offices.
2. The Consent Decree Library

     NEIC developed, and will maintain, the consent decree
library as an automated management information system to
store summaries of each EPA consent decree on file in the
Repository.  Each consent decree summary will include the
following information:

          c Case name.
          0 Date the consent decree was entered and, if
            applicable, the date the decree was modified.
          • Consent decree requirements, including due dates,
          e Information indicating when these requirements
            were met.

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                              -6-

 NEIC will  develop these  summaries  and  send  them  to  the  Regional
 Counsels'  Offices to review  and  confirm their accuracy.  The
 information  in  the library can be  updated by NEIC,  based upon
 information  sent  to NEIC by  the  Office  of Enforcement and
 Compliance Monitoring (OECM), to reflect the current compliance
 status  of  EPA consent decrees.
      The library  contains summaries of  most EPA  consent
 decrees on file.   Computer terminals will link EPA  Bead-
 quarters and the  Regional Offices  electronically with the
 library.   NEIC will  provide  OECM and Regional Office personnel
 training on how to use the library.
      Direct access to the library  will  provide the  Agency's
 attorneys  and enforcement staff  with information on active
 or terminated consent  decrees which may be useful in drafting
 and negotiating new  consent  decrees.  Direct access to the
 library will also  provide Regional managers with information
on upcoming requirements which may be useful in  targeting
 source inspections and in projecting resource needs.
3. Compliance Monitoring

     Consent decree compliance monitoring is presently
conducted to determine whether individual consent decree
requirements are properly met.  Compliance monitoring activities
often include source reporting and on-site inspections.

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                             -7-

     Under the national consent decree tracking system,  the
Regional Program Offices are primarily responsible for con-
ducting monitoring activities in accordance with national
guidance issued by EPA Headquarters.  The Regional Program
Offices will continue to conduct compliance monitoring using
whatever automated information system (e.g., PCS for Mater
Enforcement) they choose to use to assist them in their
monitoring efforts.
4. Compliance Tracking
     Compliance tracking is the gathering and compiling of
compliance information which Agency management can use to
determine and assess general trends in the Agency's consent
decree enforcement efforts.  Compliance tracking will be
based upon the information gathered by the Regional Program
Offices in the course of conducting their compliance monitoring
activities.
     OECM is responsible for tracking EPA's enforcement efforts
on a national level, including whether the Agency is meeting its
legal responsibility to the Courts for ensuring that consent
decree requirements are met.  Consequently, OECM will be
principally responsible for compliance tracking, through use
of the automated Consent Decree Library operated by NEIC, to
ensure that Agency consent decree enforcement efforts are
adequate.

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                             -8-

     To facilitate OECM compliance tracking activities,
The Office of Management Operations  (OMO) will send each
Regional Administrator periodic information requests concerning
the compliance status of each consent decree in the Region.
These information requests will serve as a tool to ensure
that Regional Offices focus on source compliance with individual
                                 \
milestones in each consent decree.
Tracking System Operation

     The operation of the tracking system will draw from the
information stored in the consent decree library.  At the
beginning of each quarter, OMO will send to each Regional
Administrator two computer print-outs (see attachments)
containing consent decree information from the consent decree
library.  The computer print-outs will list:

          a. All consent decree milestones in each Region
             which are scheduled to come due during the
             present quarter (prospective).
          b. All consent decree milestones in each Region
                                v.
             for which the Region was responsible for
             ensuring compliance during the preceding
             quarter (retrospective).

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                             -9-

     The prospective print-out is intended as a tool for use
by the Regional and OECM management generally.  It may be
used, for example, as an alert device to assist each Regional
Administrator in advance preparations for ensuring that
consent decree milestones coming due during the quarter are
met properly.
     The retrospective print-out will contain instructions
asking each Regional Administrator to respond to OMO, within
ten working days of the transmission date of the print-out,
with the following summary information:

          0 Whether each consent decree milestone which came
            due during the preceding quarter was achieved.
          • The consent decree milestones which were not
                                                      •
            in compliance.
          0 Whether any consent decree milestones were
            renegotiated.
          • If any milestone is not achieved or renegotiated,
            the enforcement response the Region intends to
            take to ensure that the milestone is achieved.
     The Associate Enforcement Counsels in DECK will review
the information provided by the Regional Administrator for
use in tracking the Agency's overall consent decree enforce-
ment efforts.  OMO will send the raw data to NEIC to be
used to update the information in the consent decree library.

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                             -10-


     It will be important for the Regional Administrator to

make sure that the response is properly coordinated between

the various offices in the Region (e.g., the Regional

Program Offices and the Regional Counsels' Offices).  This

will better ensure that the information in the tracking system

is accurate and complete.
                       '.'


OFFICE RESPONSIBILITIES


     Three Agency components will share responsibilities in

implementing and maintaining the consent decree tracking

system.  These three offices are:


          1. NEIC

          2. Regional Administrators

          3. OECM Headquarters


The respective responsibilities of these offices are specified

below.

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                             -11-

1. NEIC
     KEIC's responsibilities generally will involve the
start-up operations and the maintenance of the Repository and
the Consent Decree Library.  This will include the following:

          • Completing the collection of physical copies of
            EPA consent decrees to be filed in the Repository.
          • Maintaining the Repository and making available to
            Agency personnel upon request copies of consent
            decrees filed in the Repository.
          0 Ensuring that summaries of all EPA consent decrees
            filed in the Repository are fed into the Consent
            Decree Library.  NEIC will send copies of the
            summaries to the Regional Counsels1 Offices for
            review to ensure the accuracy of the summaries.
          e Maintaining the Consent Decree Library and ensuring
            the smooth technical operation of the library.
          • Providing OECM and Regional Office personnel with
            training on how to use the library and establishing
            a contact point in NEIC to respond to Agency
            inquiries on proper library use.
          0 Updating the Consent Decree Library with compliance
            information sent to NEIC quarterly by OMO.

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                             -12-
2. Regional Administrators

     The Regional Administrators are ultimately responsible
for keeping informed of the compliance status of the consent
decrees in their Regions, so that they can act promptly to
remedy any identified instances of noncompliance.  It will be
important for the Regional Administrator to make sure that
the Region's consent decree compliance efforts are properly
coordinated between the Regional Program Offices, the Regional
Counsel's Office, and other appropriate offices in the Region.
With regard to the consent decree tracking system, these
compliance efforts will include:

          • Reviewing the consent decree summaries prepared
            by NEIC for accuracy prior to final entry into
            the Consent Decree Library.
          0 Forwarding to NEIC copies of all future EPA
            consent decrees that have been entered in Court,
            including any renegotiated consent decrees.
          • Conducting compliance monitoring in accordance with
            policy issued by the national program offices to
            determine if the terms of each consent decree
            are met.  Regional Offices may use whatever
            automated information system they choose to
            assist them  in monitoring.

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                             -13-

          0 Responding to OHO requests for information
            concerning consent decree compliance status.
          0 Using the Consent Decree Library as nay be
            necessary to ensure the compliance of
            existing consent decrees and in drafting and
            negotiating new consent decrees.
3. OECM
     Under the tracking system, OECM's general responsibilities
of tracking consent decree compliance will be shared by OMO
and the Associate Enforcement Counsels.  These responsibilities
will include:

               * Sending quarterly information requests
                 inquiring about the compliance status of the
                 consent decrees in each Region to each
                 Regional Administrator.
               • Forwarding summary information from
                 the Regional Administrator to NEIC to use
                 in updating the Consent Decree Library.
               0 Forwarding to NEIC copies of all future EPA
                 consent decrees in nationally managed cases,
                 including any renegotiated consent decree in
                 which the Associate Enforcement Counsel took
                 the lead in the renegotiation.

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                             -14-


                • Tracking the overall EPA consent decree

                 enforcement effort using information

                 contained in the Regional Adminstrator'6

                 responses to OECM's quarterly consent

                 decree compliance information requests.

                • Evaluating each Region's accomplishments

                 in monitoring consent decree compliance and
                       •, *
                 responding to noncompliance problems.



     The success of this uniform national system for tracking

consent decrees depends upon how well Agency offices work

together in implementing and maintaining the system.  If

properly implemented and maintained, the tracking system can

enhance EPA's consent decree enforcement efforts.

     If you have any questions concerning the system, please

contact Michael Randall of OLEP at FTS 382-2931 or

Gerald Bryan of OMO at FTS 382-4134.



Attachments

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Attachment A
  SAMPLE PROSPECTIVE REPORT FOR THE QUARTER BEGINNING 7/1/83


Listed below are the consent decree milestones which will
come due during the present quarter.



   1. Republic Steel          Chicago, 111

         Milestone: Place purchase order
         Due date:  9/15/83

   2. Great Lakes Steel       Zug Island, MI

         Milestone: Commence construction
         Due date:  8/1/83

   3. Ford Motor Co.          Dearborn, MI

         Milestone: Demonstrate compliance
         Due date:  a/30/83

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Attachment B

  SAMPLE RETROSPECTIVE REPORT FOR THE QUARTER ENDED 6/30/83

Please provide the requested information for the
consent decrees milestones listed below.

A. Milestones due in quarter dated 4/1/83 to 6/30/83:

   1. Republic Steel    Chicago, 111

         Milestone: Submit engineering plan
         Due date:  6/30/83

      a. Was Milestone Achieved?
         (yes or no)
                      ''.'
      b. If not achieved, was milestone renegotiated?
         (yes or no)

      c. If renegotiated, please indicate new milestone.
         (e.g., new milestone date due is 9/30/83)

      d. If not achieved or renegotiated, what action is
         contemplated to bring source back into compliance?
         (e.g., referral to OLEC HQ)


B. Milestones due in previous quarters which were not met
   in those quarters and had not been renegotiated or
   achieved as of 3/31/83?

   1. Great Lakes Steel    Zug Island, MI

         Milestone: Place purchase order
         Due date:  1/1/83

      a. Has milestone been achieved since the previous update?
         (yes or no)

      b. If not achieved, has milestone been renegotiated since
         the previous update?
         (yes or no)

      c. (Repeat above)

      d. (Repeat above)

C. Total number of consent decrees with milestones not
   met or renegotiated by 6/30/83.                         (number)

D. Total number of consent decrees this quarter
   brought back into compliance with milestone
   requirements due to action (including
   renegotiation) taken by the Region?                     (number)

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TK.1-5

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENO
                         WASHINGTON, o.c.
SUBJECT:
FROM:
TO:
Procedures and Responsibilities for Updating and
Maintaining ^the,. Enforcement Docket
Richarc
 ffice of Enf*
   enior Enforcement Counsel,
cement and Compliance Monitoring (LE-133)
Associate Enforcement Counsel
Regional Counsel
     We have just completed compiling and reporting our 1st
Quarter, FY 1987 accountability "leisures for civil judicial
referrals.  This process always requires considerable effort
in reconciling and  interpreting data and suggests that there
may be some confusion and misunderstanding about the data
required and about  the procedures and responsibilities
for updating and maintaining the Docket.                        f

     The responsibility for providing, maintaining, and verifying
data in the Docket  is shared among Headquarters and Regional
staff, Headquarters and Regional data analysts.  I have identified
in the attached procedures some of the data problems that we
observed and ask that every one participate in correcting
erroneous and missing data and continue during each monthly
update cycle to provide accurate and complete data.  The
procedures discuss  the various areas of concern and the
primary responsibilities.  Each staff attorney should receive
a copy of these procedures so that they are reminded of how
the Docket is maintained and understand their responsibilities
in the overall process.

      Every attorney is asked to review their cases, provide
correct or missing  data, and to remain diligent in the monthly
review and entry of Docket data.  I have also asked the
Headquarters and Regional data analysts to routinely run
reports that will help locate incorrect or missing data.  The
analysts will review these reports for inconsistent or missing
data and contact the Responsible attorneys for clarification.

     Your persistence and continued efforts are essential to the
successful operation of the Docket.  If you have any questions
about the procedures or wish to make suggestions to improve
the procedures and  usefulness of the system please get
in touch with me, Sally Mansbach, or Bruce Rothrock.
cc: J. Bryan
    S. Mansbach
    3. Rothrock
    G. Young
    Computer Sciences Corporation

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        Procedures  and  Responsibilities  for  Updating  and

               Maintaining  the  Enforcement  Docket


      An  accurate and current Docket  data base  <1epun:3s  on  the
 initial  entry  of cases and on  the  regular monthly  review  and
 case  update  by the Headquarters  and  Regional attorneys assigned
 to  the  case.   It is particularly critical  that the update and
 data  entry schedule be adhered to  at the end of  each fiscal
 quarter.  The  steps in the process are:

      (1)  Prepare Case Data and  Facility Data  Forms  for the
           initial entry of cases, either during the period
           when the case is under  development  or at  the time
           the  case is referred  (Regional attorney)
      (2)  Enter all new cases  (Regional analyst)
      (3)  Prepare monthly  case updates  (Regional & HO  attorneys)
      (4)  Enter monthly case updates (Regional & HQ  analysts)
      (5)  Run  reports  to verify  the  overall accuracy of the Docket
           (number of  new  referrals,  overall status  of cases,
           major milestone dates,  referral  indicator,  law/section)
           and  distribute  to Regional Counsel  and  Associate     '
           Enforcement Counsel for verification  (Regional  & HO
           analysts)
      (6)  Verify accuracy  of Docket  and make corrections
           (Regional Counsel, Associate Enforcement  Counsel)
      (7)  Enter corrections (Regional & HO analysts)
      (8)  Run  accountability reports and complete  SPMS reporting
           instruction forms (HO analysts, MOB)


     Monthly updates (item 3) should be completed  by the  first
of the month,  verification (item 6)  about the  9th, completion
of SPMS reporting instructions (item 8) and to the Compliance
Evaluation Branch on the 13th, to  the Assistant  administrator on
the 14th, and  final SPMS reporting and to OMSE no  later than
the 15th of the month.  This means that all corrections and
data entry and  updating (item 7) must be completed by  the
10th to be included in the accountability report for the  just
concluded fiscal quarter.

     The verification  reports are  a  tool for use in determining
if all cases have been accounted for and the events  surrounding
active or recently concluded cases have been entered in the
DOCKET.  Information relevant to quarterly accountability
measures which  is obtained after the monthly updates have  been
submitted to the Regional  analyst  can be entered on  the
verification reports and included  in the final quarterly
update  (on the  10th).

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1.  Initial Entry of a Case;  The Regional attorney assigned
to develop the case  is responsible  for completing  the Case
Data Form and the Facility Data Form(s), and for providing
this information to  the Regional analyst for initial entry of
the case.  Attorneys should not expect that the analyst will
complete these forms unless a procedure has been arranged
with their analyst and the data is  readily available in the
litigation package.  Such a procedure does not relieve the
attorney of the responsibility for  the accuracy and completeness
of the data.

    The attorney may enter a case in the Docket any time
after the case is "opened," but no  later than when the case  is
initiated.  The "Date Opened" is an arbitrary date
but is sometime in the period between when a decision is made
to take judicial action (an attorney is assigned to begin case
development) and when the case is "initiated." The "Date
Initiated" is the date that the Regional Administrator signs
and dates the referral letter.  This means that the referral
package is ready to  be placed in the mail. To be counted as
initiated in a fiscal quarter, a case must be in the mail and
entered in the Docket by the Regional data analyst by the
last day of the quarter.
2.  Major Milestone Event Dates;  Major milestone event dates
are critical  in tracking cases, accountability measures,  and
in most analyses that are performed.  The timely and accurate
entry of these dates  is crucial for  the overall integrity of
the system.   Significant problems have arisen due to very
late or inaccurate entry of dates.

     We regularly make calculations  of the number of cases
pending(e.g. , at EPA  HQ, at court) on a particular day(e.g.,
10/01/86).   Each time that a major milesone date is entered,
the Overall  Status (present/pending  location) of the case
changes.  Inaccurate  and late entries can seriously distort
data used for accountability and budgeting.

     Headquarters and Regional attorneys are responsible  for
the entry of  dates as part of the monthly case update.  More
specifically the lead for entry of each event date  is  identi-
fied below:

Event/Milestone Date	         Primary/Lead Responsibility

violation Determined             Regional Attorney
Technical Documents Received     Regional Attorney
 by ORC
Opened                           Regional Attorney
Initiated                        Regional Attorney
Received at  FPA 
-------
 Referred  to  DOJ
 Referred  to  US  Atty
 Filed
 Concluded
 Returned  to  Region
 Rereferred
                       HO  Attorney  or
                        Regional  Attorney  for  Direct
                        Referral  to DOJ
                       HO  Attorney  & Regional  Attorney
                       HQ  Attorney  & Regional  Attorney
                       HO  Attorney  & Regional  Attorney
                       HO  Attorney
                       Regional Attorney
3.  Overall Status;  The Overall Status of  the  case coincides
    with  the most  recent major milestone  and  indicates  the
    present location of the case.  The HO and Regional  Analysts
    are responsible for verifying  that the  overall status and
    latest milestone agree.
   Overall
   Status
     3
     4
     5
     S
Milestone/Event
Opened

Initiated
To DOJ

To US Atty
Filed in Court
Concluded
Returned to Region

Rereferred
Meaning
Case opened, under development •
 in Region                     ;
Initiated, Under Review/pending
 at EPA HO
Referred to DOJ; under review/pendi'—
 at DOJ
Referred to US Atty for filing
Filed; pending in court
Concluded; judicial aspects completed
Returned to Region for further
 development and subsequent rereferral
Rereferred by Region, pending at
 EPA HO (a case that is rereferred
 is not counted as a new referral;
 the case is counted once at the time
 of the original referral)
4.  Headquarters Review Time;  The determination of the head-
    quarters review time is applied to all cases initiated,
    regardless of whether the case is referred to DOJ, declined
    and concluded, or returned to the Region for further
    development.  The starting point  is the "Date Received at
    EPA HO" which is defined as the date that the Associate
    Enforcement Counsel receives the  litigation package.  The
    Headquarters attorney assigned to the case is responsible
    for providing these dates as part of his or her monthly
    update.  If the "Date Received at EPA HO" is not provided,
    the default is "Date Initiated."

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    Cases can be divided into four categories and the dates
    used in computing the review time  is defined for each.

    a.  Referral by Region to EPA Headquarters;

        - Date Received at EPA HQ(or Date Initiated)
        - Date Referred to DOJ

    b.  Direct Referral by Region to DOJ;

         - Date Received at EPA HQ(or  Date Initiated)
         - Date Check List Completed

        Note:  Date Check List Completed will be entered  in the
               DOCKET as a miscellaneous event and will appear
               on the Case Status/Update Report once entered.
               The event code is;  CHKLST

    c.  Referral by Region to EPA HO,  Returned to Region  for
         Further development;

         - Date Received at EPA HQ(or  Date Initiated)
         - Date Returned to Region

    d.  Referral by Region to EPA HQ,  Declined by EPA HQ  or
         Withdrawn by Region;

         - Date Received at EPA HQ(or  Date Initiated)
         - Date Concluded (Declined/Withdrawn)
5.  Referral Indicator:  The "Referral Indicator" designates
    the office(Region or EPA HO) developing and originating
    the case and where the case is referred(EPA HO or direct
    referral to DOJ).

         RH - Region to EPA HO

         RD - Region direct to OOJ

    A case that is referred by the Region directly to DOJ has
    the same date Cor "Initiated" and "To DOJ".  Many cases
    that have a Referral Indicator of "RH" have the same date
    for "Initiated" and "To DOJ," suggesting that the casr was
    really referred directly to OOJ and should have a "Re'srral
    Indicator" of RD.

    The Regional Attorney and the Regional Data Analyst are
    are responsible for entering the correct Referral Indicator
    at the time the case is initiated.  Check that all direct
    referrals are properly designated.

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 6. Concluded  Cases:  At  the  time  a  case  is  concluded  the
    Regional and  Headquarters  attorneys are  responsible  for
   . entering three data  itens  as part  of  their  monthly
    update:

    a. Date Concluded
    b. Result  - how the case was concluded
    c. Assessed/Adjusted  Penalty - for cases settled by  consent
       decree  or  litigated

    This information should be provided as soon as possible after
    the case is concluded.  In the past,  delays in entering
    these items,  for instance  "Date Concluded," have altered the
    number of  active cases on  a particular date as previously
    reported in OECM's SPMS quarterly accountability measures.

7.   Headquarters  Division;  Some values for Headquarters
    Division do not match the Law/Section values, e.g.,
    HQDV = PES, and LAW/SECTION » RCRA 7003, CERCLA 106.
    The Regional  Attorney initiating the  case is responsible
    for designating on the Case Data Form the appropriate
    Headquarters  Division that will be reviewing the case.


8.   Law/Section;  The Law(s) and Section(s) are the ones violated
    and cited  in  the litigation report and complaint, the most
    significant entered first.  Do not use the section authorizing
    enforcement,  e.g., CAA, $113.  A Section must be entered
    for each Law.   If more than one section of a particular
    law is violate and cited in the litigation r-^ort, then
    each are entered as separate combinations.

    EXAMPLES;
         CERCLA 106
         CERCLA 107
         RCRA   3008
         RCRA   7003

    In the DOCKET we use the section designation from the published
    statute; do not use the one from the U.S. CODE.

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TK.1-6

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      } UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON. D.C. 204410
                      APR   8
                                                           or
                                                           f ».r AMD
MEMORANDUM

SUBJECT:  Enforcement Docket Maintenance

FROM:
          Edward E. Reicf _
          Acting Deputy Assistant Administrator
            for Civil Enforcement
TO:
          Regional Counsels, Regions I - X
          Associate Enforcement Counsels
     As was discussed in Tom Adams' memo of February 8, entitled
"Responsibilities for Assuring Effective Civil Judicial
Enforcement" primary responsibility for the timeliness, accuracy
and completeness of information contained in the Enforcement
Docket lies with the Offices of Regional Counsel.  Specifically:

     (1)  Regions are responsible for accurate updates, at
          least monthly;

     (2)  Headquarters is responsible for accurate monthly
          update of Headquarters - initiated data fields
          (e.g., "checklist completed");

     (3)  Headquarters will not amend regional data entry;

     (4)  Headquarters will continue to monitor overall data
          quality, on a monthly basis for the balance of
          FY'88, and thereafter on a quarterly basis;
         'discrepancies will be brought to the attention of the
         "Regional Counsel;

     (5)  Docket maintenance will be considered as part of the
          annual performance assessment discussion with
          Regional Counsels.

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                                -2-

     To  insure  that  all  parties  understand  their  responsi-
bilities, we have developed detailed procedures,  which are
attached.  I request that you distribute  copies to all  attorneys
in your  office.

     If  you or  your  staff have any comments or questions, please
let me know, or contact  Sally Mansbach or Bruce Rothrock at
8-382-3125.

     My  thanks  for your  cooperation.


Attachments

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            GUIDELINES AND PROCEDURES FOR THE ENTRY AND

               UPDATE OF  CIVIL JUDICIAL CASES IN THE


                    ENFORCEMENT DOCKET SYSTEM
 I.   INTRODUCTION

      "Responsibilities  for Assuring Effective Civil Judicial
 Enforcement"  is the  subject of a Tom Adams memorandum, FEB 08,
 1988, which gives  the Regions increased authority and
 responsibility in  the judicial enforcement process.  One of these
 responsibilities pertains to the maintenance of the Enforcement
 Docket System.

      The Regions also will take the lead in the
      criticalfunction of maintaining the Agency's
      Enforcement DocketSystem.  Except in national lead case
      or where this responsibility is undertaken by a
      Headquarters  attorney and this is so noted in the case
      management plan, Offices of Regional Counsel will be   •
      solely responsible for ensuring that accurate and up-  ;
      to-date  information on each caseis maintained in the
      System.  OECM attorneys will no longer make separata
      docket entries  as  a matter of course;  instead we will
      rely on  the Regionally-entered casestatus information.
      OECM will retain an oversight  responsibility to
      ensure,  to the  extent possible, thataccurate
      information,  consistent across the Regions,is available
      from the Docket System....

      This document describes the procedures and responsibilities
 for  entering  cases in the DOCKET and for the regular, monthly
 review and update  of the Case Status Report.  As stated  in  Mr.
 Adams' memorandum, this responsibility is almost entirely that  of
 the  Regional  Attorney,  who in most instances is designated  the
 Lead EPA Attorney.

 II.   DEFINITION OF A CASE

      A.  DOCKET Design  and Assigning a Case Number.
     The Btforcement  Docket has  been designed  primarily as a
system for-tracking civil  judicial enforcement cases.   A case is
a matter vblch is developed and  referred with  the intent that it
will be filed in court as  a separate and independent entity,  will
receive its own court docket number and not  be joined with any
other case,  with this in  mind,  an enforcement matter which
involves multiple facilities, multiple statutory violations,  or
multiple defendants is entered as one case if  it is intended and
believed at the time  of case development and case referral that
it should be handled  as one action, filed in court as one case,

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 and negotiated or litigated  as  one case.  The  Docket system ha
 been designed  to  handle  and  report on multiple law/section
 violations, multiple  facilities and multiple defendants, all
 linked  to  the  parent  case.

      B.  Amendments to Ongoing  Cases.

      It may be necessary once a case has been  initiated to
 prepare and refer a related  matter with the intent of amending
 the  original case.  An example  might be an additional statute
 violation  or other defendants.  These matters  should not be
 entered as separate cases but as amendments.   There is a separate
 record  in  the  Docket  System  that allows for entry and tracking of
 amendments.

      C.  Use of DOCKET for SPMS, Accountability, and with the
         workload Model.

      The numbers  used in the SPMS and Accountability process are
 based on cases, the fundamental ingredients of the Docket System.
 These are  the  numbers that we also report to Congress and th.e
 public.  The numbers  used in the workload model are based oh
 cases and their component parts, such as amendments, number of
 facilities, etc.   The Docket structure allows  for tracking ali
 these separate activities for workload model counts, even though
 they  are included under  a single case name and number.

 III.  INITIAL  CASE ENTRY

      A case should be entered in the system (  Opened ) as soon as
possible after the Regional  program office refers the matter to
the Regional Counsel  for civil  litigation, and an attorney is
assigned and begins case development.  The Regional Attorney is
 responsible for completing the  following and giving them to the
Regional data  analyst for assignment of a case number and initial
data  entry:

      1. Case Data Form ( APPENDIX A ).  Complete all items as
        required.

      2. Facility  Data Form ( APPENDIX B ).  Complete a separate
        fen for  each violating facility.

      3. Case Summary  ( APPENDIX C ).  Develop  a case summary that
        contains  the  following  information:

          -  Case Name:  The name of the case  as specified in the
             litigation  report.

          -  Facility Name:  The name of the facility and
             location where  the violation(s) occurred.

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           -  Nature of case and violations(s) upon which the case
             is based.   Include the laws and sections violated.

             Proposed relief and remedy, including injunctive
             and proposed penalty to be sought at settlement.
             Enter penalty fields on the Case Data Form.

           -  Significant national or precedential legal or
             factual issues.

           -  Previous enforcement actions  (date, type).

             Recent contacts with defendant(s)  (nature, outcome).

             Other significant aspects.

These  paragraphs will be entered in the DOCKET as narrative under
the heading  "Case Summary."  See APPENDIX  C  for an example.

     The Regional Attorney is responsible  for entering a new case
as soon as possible after case development is begun.  While ,the
case is under development and prior to being referred (Initiated)
the case is  in an overall status of "Opened."  The earlier the
case is entered as an "Opened" case the sooner it will appear  on
the DOCKET for use in case management.  This procedure reduces
the end-of-quarter data  entry crisis to record cases initiated (a
large  proportion of which appear at the very end of the quarter).
If the case  has been entered during case development it is
necessary  to enter only  the "Date Initiated11 at the time the case
is referred.  This eliminates the risk that  a case might not be
counted because all of the appropriate information could not be
entered before accountability reports are  run.  Entry of "opened"
cases  also facilitates management of actions which are the
subject of pre-referral  negotiation.


IV.    CASE STATUS REVIEW PROCEDURES

     The Lead EPA Attorney has primary responsibility for the
review and update of all active cases.  This is done at a minimum
monthly by reviewing the Case Status Report  and making  any
changes or updates directly on the report.   The Lead EPA Attorney
receive* update forms for all his/her cases  from the Regional
data analyst ones each month.  The Lead EPA  Attorney  is
responsible  for annotating the update forms. These  forms are
returned by  the Lead EPA Attorney to the data analyst  for entry
by the last  work day of  the month.  The data analyst completes
corrections  and updates  and returns revised  forms within five
work days  to the Lead EPA Attorney for the next month's review
and update.

     The Lead EPA Attorney should pay particular attention  to  the

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 following areas:

      Case Information
      Major Milestone and Miscellaneous Events
      Staff,  Attorney Names
      Results
      Penalties
      Case Status  Comments

      An  entry must be made in the attorney comment area every
month.   Any  issues which have been discussed or significant
events which occurred during the past month since the last update
must  be  included  in the comments.  An example of the nature and
method of entering status comments is contained in APPENDIX D.
If there has been no development or no activity in the case, "No
Change"  must be entered by the Lead EPA Attorney.  The lead EPA
attorney gives the annotated monthly reports to the data analysts
for data entry and data base update.  If the analyst does not
receive  an update for an active case by the time the review
period has ended, he/she will enter "NO UPDATE RECEIVED."

      Except  in cases where the Headquarters attorney is the [Lead
EPA Attorney, Headquarters attorneys will be responsible only for
updating HQ-specific data (e.g., received at EPA HQ, checklist.
completed, for direct referrals and referred to DOJ for other
than  indirect referrals).

      A chart display of roles and responsibilities is contained
in Appendix  E.  Summary "case code" tables are included in
Appendix F.

V.    QUALITY ASSURANCE

      The Lead EPA Attorney is responsible for assuring the
accurate,  complete, and timely entry of all cases and for the
ongoing,  monthly update and verification of case data.  Regional
Counsel  are  responsible for periodic review of the Docket for
accuracy and completeness of all data elements, including
Attorney Comments.

      Repeated problems with accuracy of data entry should be
brought  t» the attention of the Regional Counsel.  The Regional
Counsel  •fcould notify Sally Mansbach or Bruce Rothrock if
problem* merit further attention.

      OECM Headquarters will review the overall Docket for
accuracy and completeness, on a monthly basis for the balance of
FY 1988  and  quarterly thereafter.  Obvious errors or omissions
will  be  brought to the attention of the Regional Counsel,  for
appropriate  Regional action.  Headquarters data entry will  be
restricted to those data elements which are Headquarters
responsibility.  No amendment of Regional data will be made by

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Headquarters staff.



     Coa»«nts or questions regarding Docket
                                                             cr

-------
                          ENFORCEMENT  CASE  DATA FORM
                                                                 APPENDIX  A
     CASE NO.:   	-	- E _
     (Assigned by Docket Control
                Date Entered;
 * CASE NAME:
 * TYPE CASE:  	
 (See Back for Adm.)

 * HQ DIVISION:
 *  LAW/SECTION:
 1.	/	
 2.	/	
 3.	/	
 4.	/	
 5.         /
 * TECHNICAL  CONTACT:

 * REGIONAL ATTORNEY:

 * DEFENDANTS:
 COMPLAINT?
 (Y/N)
 1.	
 2.	
 3.	
 4.
* STATE:

VIOLATION TYPE:

  DATE OPENED:
* DATE INITIATED:
   (Civil)
  DATE ISSUED:
  (Adj. Adm.)
  DATE CONCLUDED:

DATE VIOLATION
DETERMINED:

PROPOSED PENALTY:
CIV - Civil
CIT - Citizen Suit
BNK - Bankruptcy
AIR - Air
HAZ - Hazardous Waste
PES - Pesticides and Toxics

* (Please use the section
of the law VIOLATED,
NOT the section that
authorizes the action)
     MOB - Mobile
     WAT - Water
     CFR/SECTION:
      1.	/	
      2.	/	
      3.      /
                         PHONE: FTS -

                         PHONE: FTS -

                              NAMED IN
           POLLUTANT:
        * REFERRAL INDICATOR  	 RH: Region to HQ
                              	 RD: Region to DOJ
                                  (Direct Referral)
       Direct Referral Lead: DOJ      USA
          DATE DOCUMENTS
          RECEIVED BY ORC:
* Required fields - must be  filled  out  for case entry

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                                                             Appendix B
                             FACILITY DATA FORM

 *PLEASE  USE  THE ADDRESS OF THE SITE OF  VIOLATION (NOT THE COMPANY MAILING
 ADDRESS).

 *A  SEPARATE  FORM MUST BE COMPLETED FOR  EACH  FACILITY CITED IN THE CASE.
   CASE NO.:
-E
 |  (Assigned by DOCKET analyst)


 *  FACILITY NAME:  	

 *  STREET ADDRESS:  	

 *  CITY:
 *TYPE OWNERSHIP:
EPA ID #:	
(Assigned by FINDS analyst)
           * STATE
             ZIP:
           P:   Private industry or individual,
           F:   Federal Government            :
           S:   State
           C:   County
           M:   Municipal
           D:   District
 x'C cODE(s) : 	
   (one required)
                                  OPTIONAL
PARENT COMPANY:

NPDES PERMIT NO.

SUPERFUND SITE:

LATITUDE:

LONGITUDE:
            (Y or N)

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                                                  APPENDIX C

                  CASE SUMMARY  CONTENT  AMD  FORMAT '

      Th«  following is an  example  of  a  Case Summary.  The summary
 is  written by the Regional  Attorney  and provided to the Regional
 Data  Analyst  along with the Case  Data  Form and Facility Data Form
 at  the  time the  case  is initially entered.  The summary includes:
 Case  Name,  Facility Name, Nature  of  case and violation(s) upon
 which the  case is based,  Proposed relief and remedy, Significant
 national or precedential  legal or factual  issues, Previous
 enforcement actions,  Recent contacts with  defendants, other
 significant aspects.

                            - EXAMPLE -
CASE SUMMARY:

     THIS IS A PROPOSED ACTION AGAINST THE ACME DISPOSAL CORP
(ADC) ET AL., UNDER SECTION 107 OR CERCLA TO RECOVER PAST COSTS
AND TO ESTABLISH LIABILITY AS TO FUTURE COSTS TO BE INCURRED
UNDER SECTION 104.                                          ;
     THIS CASE INVOLVED THE ADC SITE, LOCATED IN MODELTOWN, MA.
THE SITE WAS LISTED ON THE NPL ON 04/01/84.  THE SITE  IS A  100-
ACRE LANDFILL WHICH HAS BEEN OWNED BY ADC SINCE 03/05/75.
NUMEROUS INDUSTRIAL WASTES HAVE BEEN DISPOSED OF AT THIS FACIL'
SINCE 1942.
     EPA CONDUCTED ON-SITE GROUNDWATER SAMPLING ON 05/01/85.
ANALYSIS REVEALED THE PRESENCE OF HAZARDOUS SUBSTANCES INCLUDING
METHYL ISOBUTYL, KETONE, AND TOLUENE.  A NOTICE LETTER WAS  SENT
TO THE SITE OWNER/OPERATOR AND TO THE TEN KNOWN GENERATORS  ON
05/20/87. NO RESPONSES WERE RECEIVED.
     THE 1ST IMMEDIATE REMOVAL WAS COMMENCED ON 06/01/85 AND WAS
COMPLETED ON 06/25/85.  ONE HUNDRED DRUMS AND 500 CU YDS OF SOIL
WERE REMOVED AND DISPOSED OF AT A RCRA-APPROVED FACILITY.   THE
2ND IMMEDIATE REMOVAL ACTION WAS STARTED ON 08/01/85.   FIFTY
DRUMS AND 100 CU YDS OF SOIL WERE REMOVED AND DISPOSED OF AT A
RCRA-APPROVED FACILITY.  TOTAL FEDERAL GOVT COSTS AS OF 11/01/87
ARE $1,524,000.
     A DEMAND LETTER FOR PAST COSTS WAS SENT TO ADC ON 12/01/87.
THE STATOT* OF LIMITATIONS MAY RUN ON 06/25/88.  GENERAL NOTICE
LETTERS WIFE SENT TO 143 PRP GENERATORS ON 09/01/87.

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                                                  APPENDIX D

                       CASE STATUS  COMMENTS


     The following are examples of attorney case status comments,
provided as part of the monthly review of active cases.  Comments
are written by the attorney directly on the Case Status Report
directly below or in the margin beside the previous months entry.

                           - EXAMPLE -


HEADQUARTERS CASE STATUS:



REGIONAL CASE STATUS:

  01-30-88:  COMPLAINT FILED IN DIST. CT  (EDMA) ON 01/15/88
AGAINST ADC, CITY OF MODELTOWN, GENERAL DISPOSAL CORP,, ET AL.
  02-28-88:  ADC FILED ANSWER ON 02/15/88;  GENERAL DENIALS.  ADC
FILED MOTION TO DISMISS ON 02/15/88.                        ?
  03-30-88:  ADC MOTION TO DISMISS DENIED ON 03/20/88.  STATUS
CONF SCHEDULED TO BE HELD ON 04/18/88.
  04-29-88:  STATUS CONF HELD ON 04/18/88.  GENERAL DISPOSAL CORP
REQUESTED TREATMENT AS DE MINIMIS GENERATOR.  LITIGATION TEAM
PLANS TO MEET ON 05/20/88.  GOVT PLANNING TO FILE MOTION FOR SJ.


     (1)  It is important to add precis* data* to update comments
both to be specific and to avoid confusion between the date of
the docket entry and the date of the event.

     (2)  It is important to follow up on stated planned events
in subsequent monthly updates with comments as to whether or not
the planned event took place and, if so, when.

     (3)  Case status comments should reflect the general content
of settlement proposals and draft and final consent decrees,
including final construction deadlines, final compliance
deadlines, penalties, duration of the decree, and whether or not
stipulated penalties are included.

     (4)  If there are no updates during  a month, enter  "NO
CHANGE".

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                                        CIVIL JUDICIAL ENFORCEMENT DOCKET
                                       DATA ENTRY MAINTENANCE VERIFICATION
                                          RESPONSIBILITIES AND PROCEDURES
                                                                                            APPENDIX K
                                                                                              03/11/RR
   ACTIVITY
     WHO
                 Regional Attorney
                 assigned to OpM
                 developMHt or
                 Lead EPA Atty
        WHAT
                                                                        When
                                                   Optional; When case Is
                                                   opened or any time up
                                                   to but no later than
                                                   when case is referred
                                                   to HQ or directly to
                                                   DOJ
                                                                HOW
                                                        Attorney completes forma "and
                                                        Case Summary.   All items
                                                        marked with '*' oust he
                                                        completed.   ftivea  to Regional
                                                        data analyst.
Open a Case
Completes: Case Data Form,
Facility Data Form for each
violating Fac.. Case Summary.
Case Is a matter which Is
filed, settled or litigated
separately from any other
Caae.
Initial Case
Entry
Regional Data
Analyst
Aasign Case Number:  Enter
data from Caae Data and
Facility Data Forms, Case
Sunnary
                                                                    At time Regional
                                                                    Attorney Completes
                                                                    Forma.
                                                        On-line from Case Data and
                                                        Facility Data Forms. Case
                                                        Sunnary
Case Review
and Case Update
of all Active
Cases
a. Lead EPA Atty
Ma1. Milestones/Misc. Events.
Dates, Staff, Status Comments
and Signficant Case events
                                                                    Monthly, Completed and
                                                                    given to Regional
                                                                    Analyst by 1st work
                                                                    day of each month
                                                        Review & edit as appropriate
                                                        Case Update Report (using
                                                        clear notations in bright
                                                        colored ink)
                  b  HQ Attorney
                     HQ data fields  (e.g. checklat  Monthly
                     complete.  HQ Comments  if appropriate)
                                                        Case Update Report,  as  above.
                                                        delivered by HQ data analyst
 Data Entry,
 Data Rase
 Update
 a. Reg.  Analyst
Case Update Report as
reviewed and annotated by
Lead Attorney
                  b. HQ Analyst
                     As appropriate
 Case/Data        HQ Attorney
 Verification
                     Maior milestone Dates,  Over-
                     all Status (see 3b),  other
                     Case Level Data; Regular
                     Status Comment Update      (
                     Lead Attorney
                                                                    Monthly, Beginning the
                                                                    1st of the month.
                                                                    completed by the 5th
                                                                    work day.  Run new
                                                                    Update Reports and
                                                                    distribute by 8th work
                                                                    day.
                                                        On-line, directly from Case'
                                                        Update provided by Regional
                                                        Attorney.  Update all active
                                                        cases even if no change maile
                                                        or no update receive!.
                               Monfhly for FY'88
                               quarterly thereafter
                                                                                             Scan Case Update Report
                                                                                             provided hy HQ Analyst.  Any
                                                                                             obvious errors or omissions
                                                                                             are brought to t*      nr ion
                                                                                             attention of Ass.      --H»l
                                                                                             then Regional  Oounsei
                                                                                                   I'A  Arr-..  ••-  	'

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                                        CIVIL JUDICIAL      ...
     WHO
Lead EPA Atty
                 HQ Attorney
Lead EPA Atty
Lead  EPA Atty
Lead EPA Atty
Tead EPA Atty
Lead EPA Atty
                  HQ Attorney
 Lead F.PA Atty
        THAT
  Significant events related
  to settlement  negotiation
  or Litigation  as required
  by RC
                      HQ Events,  as  appropriate
  Enter data about settle-
  ment/Judgement Results,
  Date, Penalty
 Enter Data for Closed Case -
 when final compliance
 achieved or case Is with-
 drawn, declined or dismissed
 Enter "Date Returned'1"
 Enter "Date Re-referral1
 Determine cases returned and
 pending > f*0 days.  Deter-
 mine action to he taken:
Refer or close.  Update Docket
                     Assess need to discuss cases
                     with Region
 Add amendments to existing
 case when matter is part
 of on-going case and will
 rot he filed as a separate
 matter for litigation	
  	
                                     -Ti—rr
   TWHT
Monthly
                                Monthly
Monthly
Monthly
Monthly
Monthly
                                                    Monthly
                                Quarterly
                                                    Itien matter is  referred
                                                                                                     Hnw
Part of monthly review of
Case Update Report.
                         monthly case review.
Part of monthly review of
Case Update Report,  or as
events occur.
Part of monthly review of
Case Update Report,  or as
events occur.
Part of Monthly Update,  or
as returns occur by proper
notification of data analyst.
Pairt of Monthly Update
                         Analyst produces report
                         of all cases returned to
                         Region and pending X>0 days
                         for Lead FPA Attorney review
                         HQ analyst prepares quarterly
                         report on cases rtd to Region
                         >60 days
                         Monthly Case Update,  or on
                         anendment data form,  to
                         Regional Analyst, when
                         amendment occurs

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 VIOLATION TABLE
                                                        Appendix F
 VIOLATIOK
 	TYPE

 AOVIOL
 CLO
 FIFRA
 FIN
 GFR
 GRANT
 GWM
 IMP
 IND
 INFO
 LOT
 MPRSA
 NESHAP
 NOPRMT
 NORPTG
 NSPS
 NSR
 PMN
 PRETMT
 PRMTVL
 PSD
 PWSM/R
 PWSMCL
 PWSNP
 PWSSA
 REG
 REP
 SIP
 SPILL
 UIC
UICCAC
UICMFL

UICMIN
UICMON
UICNPA
UICOIN
UICPRS
UICUNI
UICUNO
UICVPA
VHAP
404PMT
                                 Air Pol 1utants
         DESCRIPTION

Administrative Order Violation
Closure  and Post-Closure Plan
FIFRA
Financial Responsibility
General  Facilities Requirements
P.L. 92-500 Facility
Groundwater Monitoring
Imports
Industrial Source
CAA/114  (INFO)
Land Disposal & Treatment
MPRSA
National Emission Stds. for Haz.
Discharge w/o Permit
No   .porting or Monitoring
New Source Performance Standards
New Source Review
Pre-manufacturing Notice
Pre t reatment
Permit Violation
Prevention of Significant Deterioration
PWS Monitoring/Reporting
PWS Maximum Containment Level
PWS Notification to Public
PVS Sampling & Analyzing
Required Records Maintenance
Reporting Violations
State Implementation Plan
311/CWA
UIC/SDWA
UIC Casing & Cementing
UIC Fluid Movement in Underground Source
  Drinking Water
UIC Mechanical Integrity
    Moni tori ng
    No Approved Plugging & Abandonment Plan
    Injection Between Outermost Casing
    Injection Beyond Authorized Pressure
    Unauthorized Injection
    Unauthorized Operation of a Class IV Well
    Compliance w/Plugging & Abandonment Plan
         Hazardous Air Pollutants
                                         of
UIC
UIC
UIC
UIC
UIC
UIC
UIC
Volatile
404/CWA

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 POLLUTANT  TABLE
                                                      Appendix F
 POLLJTAMT
 	TYPE

 ARSN
 ASB
 BENZ
 BERY
 CO
 COE
 CON
 LEAD
 MERC
 NOX
 OP
 PCS
 PM
 RAOON
 RDNC
 S02
 VNCL
DESCRIPTION

Arsenic
Asbestos
Benzene
Beryliua
Carbon Monoxide
Coke Oven Emission!
Containers (Drum, Tanks)
Lead
Me rcury
Nitrogen Oxides
Opacity
Pol/chlorinated Biphenyls
Particulate Natter
Radon
Radionuclides
Sulfur Dioxide
Vinyl Chloride
**  If you would like to see any «ore pollutants  added  to
    the table, please contact Bruce Rothrock at
    FTS-382-26U

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   RESULT TABLE
                                                   Appendix F
   RESULT
   LEVEL
  Before
  Referral
  OOJ
            c o
UR

OE
                       RESULT
                        CODE
                                   RESULT
                                   REASON
Withdrawn by
Region
Dec I ined by
                                  HQ
2- After
   Referral  to
   DOJ/US Atty,
   Before f i I in
   of Complaint
   or CD
                 WE
                 DJ
                 DA
     Withdrawn by HQ
     Declined by DOJ
     Declined by US
     attorney
3-  After filing
   of Comp1aint
   or CD
                 LN -
                 CN -
                 CP
                 LP
      Litigated  w/no
      Penalty
      CD  w/no  Penalty
                       CD  w/Penalty
                       Litigated  w/Penalty  *CO
                                Penalty under RCRA'
                                Penalty under CERCLA
                                Penalty under both
                                & CERCLA
                *CR
                *LR

                *CB

                *LB
      CD/Cost Recovery
      Litigated/Cost
      Recovery
      CD w/Penalty  4  Coat
      Recovery
      Litigated  w/Penalty
      and  Cost  Recovery
                     *OC  -
                     *OT  -

                     *RC  -

                     *CC  -
                                           *RT  -
                                            *BC  -
                            *BT  -
                                                 Coat Recovery under CERCL
                                                 Coat Recovery w/treble
                                                 damagea under CERCLA
                                                 Penalty under RCRA i Cost
                                                 Recovery under CERCLA
                                                 Penalty and  Cost Recovery
                                                 under  CERCLA
                                                 Penalty under  CERCLA,  Co.
                                                 Recovery w/treble  damages
                                                 under  CERCLA
                                                 Penalty  under  RCRA,  Cost
                                                 Recovery  w/treble  damages
                                                  under  CERCLA
                                                  Penalty under both RCRA &
                                                  CERCLA, Cost Recovery and
                                                  CERCLA
                                                  Penalty
                                                  CERCLA,
                                                  treble
                                                          under both RCRA &
                                                          Coat Recovery w/
                                                         damages under CERC
                   oc - Dismissed by Court
                   vo - Voluntarily Dismissed
                   CO - Combined
    Result code and Result reason  apply  only
                                              Co RCRA/CERCLA cases

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                                                    Appendix ~
PFPFRRAL INDICATOR TABLE
 REFERRAL
INDICATOR             DESCRIPTION

   RH            Region  to  Headquarters
   RD            Region  to  DOJ
   RU            Region  co  US  Attorney
   HD            Headquarters  to  DOJ

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TK.1-7

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                              QCT   3  1994


                                                           OFFICE OF
                                                         ENFORCEMENTAND
                                                       COMPLIANCE ASSURANCE
MEMORANDUM

SUBJECT:  Support of the  Enforcement  DOCKET for Information
          Management in OECA

FROM:     Elaine G. Stanley,
          Office of Compliance

TO:       Deputy Regional Administrators, Regions 1-10
          Regional Counsels,  Regions  1-10
          Office Directors,  OECA

     OECA and the Regions are now accountable for the accurate
tracking and reporting of important information regarding all
enforcement activities of this  Agency under its multiple
statutory authorities. It is imperative that we maintain and
improve a reliable, centralized system for gathering such
information that can be relied  on by  OECA, other offices within
U.S. EPA, the Department  of  Justice,  Congress and the public. The
National Civil Enforcement DOCKET is  currently maintained by OECA
for case tracking and reporting purposes. It is our intent that
all formal enforcement cases, civil judicial and administrative
penalty orders, be included  and managed through the Enforcement
DOCKET.

     Accordingly, to move us collectively in the direction of
better case tracking and  information, we are establishing the
following set of expectations,  which  are effective immediately.

     The Regional Counsels have the primary responsibility for
entering and maintaining  data on all  civil judicial and
administrative enforcement actions. The Regional Counsels, with
Division Directors of the Office of Regulatory Enforcement, will
ensure that every civil judicial and  formal administrative
penalty enforcement case  will be included and managed through the
National DOCKET. Starting in FY 1995, all new formal
administrative penalty actions  will be entered into the
Enforcement DOCKET. By the end  of the second quarter FY 1995, all
administrative penalty orders that have been issued or filed but
not yet concluded are to  be  entered into DOCKET. As time and
resources allow, any other administrative matter is to be entered
into DOCKET as well. Beginning  in FY  1995, we intend to use the
Enforcement DOCKET as the sole  source of Agency reporting on
Administrative Penalty Orders.   We intend to examine the
feasibility of including  all formal administrative orders (AOs


                                                          Recycled/Recyclable
                                                          Filmed wilh Soy/Canoli Ink on pap«r thai
                                                          contains el lean 60% recycled Fiber

-------
and APOs) in the DOCKET beginning in FY 1996.

     I expect that every civil case referred will continue to be
entered promptly into the DOCKET, including an appropriate case
summary before it is referred. Compliance with DOCKET management
and guality control principles should be a factor in the
performance appraisal of each affected manager. Effective use of
the DOCKET should help improve efficiency and minimize disruption
and transaction costs.

     All OECA offices will use the DOCKET as the primary data
source for enforcement activity. Before an OECA office requests
information regarding enforcement activities from Regional
offices or other offices in Headquarters, the Office Director or
other requesting manager or staff will attempt to get that
information from the DOCKET. Only with the DOCKET data in hand
Will HQ offices call the Regions and verify the data. To the
greatest extent possible, OECA will notify the Regions when the
DOCKET will be used for special analysis so that the Regions are
given an opportunity to clean up data. If the manager determines
that the information is not available on DOCKET, that fact should
be reported to the Region and to the Director of the Enforcement
Planning, Targeting and Data Division (ETPDD) of the Office of
Compliance so that changes can be made to DOCKET.

     We recognize that certain improvements and additional
support are needed for the Enforcement DOCKET system. To that
end, we are forming an Executive Steering Committee to provide
guidance and direction to the DOCKET managers for short and long
term planning for the DOCKET. For the past year, a DOCKET
workgroup headed by Larry Kyte, ORC, Region V, has been working
with OECA to recommend and implement DOCKET improvements.  Many
of these recommendations will be implemented in FY 1995.  The
Executive Steering Committee will build on the Docket Workgroup's
efforts and will have representatives from the Regional Counsels,
Regional Enforcement Programs, and OECA Offices.

     OECA is committed to implementing DOCKET improvements.  Some
improvements already identified have been made such as the
addition of a field to easily identify Multi-Media cases.
Immediate improvements are also being made to the Regional
Matters Tracking System to make it operate faster and be more
compatible with the DOCKET.

     The Regional Counsels must continue to ensure that the
quality and timeliness of information in the DOCKET is
maintained.  A failure to maintain that quality will result in
the data not being relied upon and undermines the integrity of
the entire information management program.  It is hoped that the

-------
above procedure will avoid unnecessary "fire drill" requests of
the Regions and particularly Regional Counsels' offices.  It
should also help assure that the DOCKET is tracking needed
information in an efficient and accurate manner.  Your support of
the system is needed and expected.  If you have any questions
regarding this guidance, please call me or Fred Stiehl at (202)
260-8180.

cc:  Scott Fulton
     Steve Herman

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CM.1

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CM.1-1

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/ Q  \       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

V S3K /                     WASHINGTON. D.C. 2*4*4
                                     | I  1988
         MEMORANDUM

         SUBJECT:   Case Management Plans
FROM:      Thomas-L.  Adams,  Jr. «=s»A*N-w>~v>-i» w.
          Assistant  Administrator for Enforcement and
          Compliance Monitoring (OECM)
          U.S.  Environmental Protection Agency  (BPA)
                              YA .J  '     T \  L>
           loger J. Marzulla  I  u* "L f '   *    ^	
                  Roger
                  Acting Assistant Attorney General
                  Land and Natural Resources Division
                  U.S. Department of Justice  (DOJ)

        TO:       EPA Regional and OECM Attorney*

                  EPA Regional Program Office  Personnel

                  Environmental Enforcement Section Attorneys
                  DOJ Division of Land and Natural Resources


             The environmental enforcement cases initiated by  the United
        States Environmental Protection Agency (EPA) and the United
        states Department of Justice  (DOJ) are characterized by their
        complexity, their significant demand on resources, and the
        participation of numerous legal and technical  people from many
        offices.  Nearly all cases present major challenges to EPA and
        DOJ, and in some instances can take several years to bring to
        conclusion.  In order to achieve  the best possible results  in the
        shortest time, with the most efficient use of  resources, both EPA
        and DOJ will be implementing a number  of measures to promote the
        effective handling of cases.

             Case management plans represent  a mechanism  to  enhance
        the effectiveness of the environmental enforcement program.
        Case management plans are plans for the conduct of environmental
        enforcement cases which provide a road map  for bringing a  case

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                                -2-


 from its  initiation  to  a  successful conclusion.  The primary
 elements  of  the  plans include the tasks to be performed, the
 people  assigned  to perform the  tasks, and the dates by which the
 tasks are to be  completed.  Case management plans include both
 the  litigation and negotiation  elements of the case, and the
 legal and technical  tasks to be performed.

      With the number of people  involved in cases, it is
 essential to establish  as early as possible which litigation
 team members will be responsible for what tasks and when these
 tasks will be completed.  Because DOJ is primarily responsible
 for  management and control of the case, it will have the lead
 role in establishing the  case management plan.  Attorneys in the
 regional  offices, the Office of Enforcement and Compliance
 Monitoring,  and  in some cases U.S. Attorney's Offices, also play
 significant  roles in the  cases, as do EPA technical staff;
 therefore, they  will participate in the development of the plan.
 The  case  management  plan  will,  to the maximum extent practicable,
 reflect the  agreement among members of the litigation teas as to
 how  they  will bring  the case from its initiation to a successful
 conclusion.

      DOJ  has developed  the attached form covering the legal
 assignments  for  the  litigation  elements of case management plans
 This form is comprehensive and  will be used for all cases
 beginning April  1, 1988.  The form will be used as follows.

      Regional attorneys and regional program staff who are
 preparing litigation reports should indicate their availability
 for  case  work assignments in a  draft case management plan when
 the  case  is  referred.   The attorney should use the standard DOJ
 form, and should propose  assignments for the regional attorney
 and  regional technical  staff which include only those tasks which
 regional  supervisors and  managers consider appropriate  for the
 individuals  assigned to perform them.  The form, as submitted by
 the  region,  will not address assignments for DOJ attorneys or
Assistant U.S. Attorneys.  The  draft case management plan should
 also  reflect the regional attorney's initial thinking concerning
 the  strategy and timetable for  litigating and negotiating the
 case, although at this  point in the development of the  case, the
draft plan may not contain much detail.

      During  the  period  assigned for its review of the referral,
OECM will  propose to DOJ, after discussion with the region, any
 assignments  which management considers appropriate  for  the OECM
 attorney  assigned to the  case.  The DOJ attorney should then,  in
 consultation with EPA,  complete the case plan  for litigation  and
 negotiation.  It is  important for the DOJ attorney  to  initiate

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                               -3-


developmant of a strategy and timetable for the case,  in concert
with the other members of the litigation team.   The team's
members should assure support for the plan by their respective
supervisors.  The plan should reflect a realistic assessment of
the resources (including technical and contract dollar resources)
available to support the case, and team members should be
assigned responsibility for actually obtaining the resources
contemplated by the plan.  The DOJ attorney should have a case
plan in place by the date of filing of the complaint,  addressing
the roles of DOJ, the Assistant U.S. Attorney,  and regional and
headquarters legal and technical staff.

     Because litigation and negotiation of environmental
cases is a dynamic process, initial projections of tasks in a
case plan will need to be revised on a periodic basis.  In order
to keep the case plan up to date, but, at the same time, avoid
undue consumption of the litigation team's- time, the case plans
will be updated on a quarterly basis. * The case plans will serve
as the primary discussion documents for the legal and technical
staff and their first-line supervisors in periodic case reviews.
The plans also will be used as a guide to managers interested  in
the general progress of a case.  In order to facilitate the best
use of the case management plans, DOJ will work towards
developing a means of incorporating the plans in its case docket
system.

     If prepared and used properly, case management plans can
help assure effective and efficient management of complex
cases and available resources.

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                                                      Dace
                           PRELIMINARY CASE PLAN
Case Name:

Statutes:
        U.S. v.
DJ #90-
Nacure of
  Violation/Claims:

Litigation Team:

  DOJ/LNRD:  	

  DOJ/AUSA:  	

  EPA/RC:   	

  EPA/OECM:

A.
                                              EPA Region:
                                              District:
                                    EPA/Reg. Program

                                    EPA/HQ Program

                                    State Rep.
General Breakdown of Case Responsibilities
Assignment

1.  General Oversight and Case Management
    -- Review of all briefs and other
       filings; consultation on litigation
       and negotiations strategy

2.  Principal Contact with Defendant(s)
    on Litigation Matters

3.  Principal Contact with Defendant(s)
    Regarding Settlement

4.  Development of Technical Proof
    [List needs for liability and
     remedy case; assign by need]

5.  Selection and Development of Expert(s)
    [List needs]

6.  Development of Liability Case V
    [List elements; assign by element]

7.  Development of Remedy Case
    [Break down; assign oy element
    where possible]
                                                 Name
                                                         DOJ Attorney
                                                          (or AUSA)

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B.  Preliminary Discovery Plan
1 .
                                                 Name
                                                           Date
        Offensive Discovery
        a~T   Flrsc Set of Interrogatories
        b.   First Set of Production
            Requests

        c.   First Set of Requests for
            Ado 1 ss ions

        d.   For see able Offensive Depositions
            [List each deponent and assign
             by deponent]

    2.   Defensive Discovery
        a.   Responses to Written Discovery

        b.   Depositions

3.   Preliminary Motions Plan
    IT  U.S.  Motion to Strike Jury Trial  Demand

    2.   U.S.  Motion to Strike Defenses  V

    3.   U.S  Motion for Partial Summary
             Judgment V

    4.   U.S.  Motion for Case Management Order
        (if appropriate)

    5.   Analyze Answer/Motion to Dismiss  V

    6.   Response to Motion to Dismiss V

 D.   Preliminary Settlement Plan
        [List near-term events and tasks
        relating to settlement; assign
        as  appropriate]

 E.   Deadline for First Revision and Expansion
                                             to be  assigned  as they
                                             are noticed
 V   In  multiple defendant cases, list each defendant and assign by defend a:
     in  single  defendant cases, assign by liability element.

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CM.1-2

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON. D.C. 20460
                                                   OFFICE OF ENFORCEMENT
MEMORANDUM

SUBJECT:  Regional Enforcement Management:  Enhanced Regional
          Case Screening
FROM:     James M.
          Assistant AtUttlnis

TO:       Regional Administrators
          Assistant Administrators


     The attached guidance on regional enforcement case screening
is now final.  Your careful  review of prior drafts is greatly
appreciated.  The review period has been well spent in clarifying
issues and ensuring the approach set forth in the guidance
provides sufficient flexibility for practical implementation.

     The final version makes several minor changes to the October
10,  1990 draft.  It:

      1. alters the case screening worksheet to:

          — provide  further protection as a privileged document;
          — include  dates for any revisions;
          — clarify  criteria for contractor listing; and
          — clarify  the relationship between civil and
             criminal judicial case potential criteria;

      2. clarifies that:

          — case screening  has benefits for resource allocation
          and prioritization of cases where there are competing
          resource demands;

          —  case screening is not intended to preclude or
          substitute  for early and ongoing consultation within
          Regions, with Headquarters or with DOJ where
          appropriate;
                                                         Printed on Recycled Paper

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          —-  multi-media enforcement initiatives are included
          within the objective of a multi-media perspective;

          --  single-media enforcement initiatives can be handled
          flexibly within the guidance;

          —  case screening is not intended to preclude criminal
          investigation necessary to further characterize the
          situation; and

     3.  excludes field citations from the case screening process
     where issued in the field.
     Enhanced case screening is an important undertaking which I
am gratified.is receiving considerable support and attention
within the Regions.  I look forward to receiving your reports oh
how you are implementing the guidance.

Attachment

cc:  Deputy Assistant Administrators
     Headquarters Compliance Directors
     F. Henry Habicht II
     Nancy Firestone
     Daniel C. Esty

bcc: OE Managers

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON, D.C. 20460
                                                   OFFICE OF ENFORCEMENT
MEMORANDUM

SUBJECT:  Regional Enforcement Management:  Enhanced Regional
          Case Screening
FROM:     James M. StrockJ
          Assistant Administrator

TO:       Regional Administrators
          Assistant Administrators

      The Enforcement  Four  Year Strategic Plan and the
Enforcement  in the 1990's project identify several shifts in
direction and emphasis that are essential to meeting demands on
enforcement  over the next several years.   This memorandum
implements regional case screening  for innovative and balanced
use of the full range  of enforcement authorities called for in
the Strategic Plan to  be fully operational by Fiscal Year 1991.

      Regional case screening and the use of screening committees
or other processes to  accomplish its objectives are not
unfamiliar subjects within  EPA.  Most Regions already have in
place systems for communication and coordination among program
enforcement  staff, Regional Counsel,  Environmental Service
Divisions and the cr.jnli.al  investigators  on enforcement case
selection, development, and follow  through.  Regions will
nonetheless  need to be prepared to  adjust existing management
systems  to include those aspects of case  screening which are not
presently being adequately  addressed.  At the same time as this
office strongly recommends  the use  of formal enforcement
screening conittees,  we also encourage the Regions to continue
to review afl& revise their  overall  management systems and
organizations, to meet  Administrator Reilly's high expectations
for enforcement.  We will share successful management approaches
across Regions and use the  occasion of program reviews and our OE
Regional Counsel audits to  assess how various approaches are
working.
                                                         Printed on Recycled Paper

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    This memorandum describes:  1) the objectives of case
screening; 2) requirements for a regional case screening
capability, including the use of case development worksheets to
aid the screening process for selected cases; 3) the recommended
use of regional case screening committees; 4) the relationship
between enforcement case screening and regional strategic
planning; and 5) oversight of the screening process.

I.  The Obiactives of the Regional Enforcement Case Screening
    Process

     Enforcement case screening is a process to link the
characteristics of the violator or violations in a particular
case with the right response from- among alternative courses of
action.  The concept is not a one-time "screening in" or
"screening out" but a continuing process with elements of both.
It identifies where decisions must be made, where there may be
good candidates for a particular enforcement approach,  and where
the course of action is or is not clear. It is not intended to
preclude or substitute for early and ongoing consultation within
Regions, with Headquarters, or with the Department of Justice
where appropriate.

     Enhanced case screening may operate within existing program
guidance on appropriate enforcement response.  It need not alter
accountability for enforcement, nor who should develop
enforcement actions.  It should, however, bring to bear, on
individual case decisions, a broader perspective on the goals and
objectives of enforcement.  The premise is that enforcement
decisions must not be made unilaterally; the decision-making
process must take into account the full panoply of alternatives.
This guidance introduces a systematic means of introducing these
other factors into the normal case decision process.  Civil
enforcement issues would be raised to the appropriate program
Division Director and Regional Counsel in their traditional line
management roles, with conflicts to.be resolved at the DRA/RA
level.  Criminal enforcement issues would be resolved in
accordance with the March 28, 1989 memorandum from Edward E.
Reich entitled "Planning and Priority-Setting in the Criminal
Enforcement Program".

     Regional enforcement case screening objectives include, and
cases should be systematically screened for, the following:

     1. the strategic value of undertaking federal enforcement;

     whether the case furthers specific national, Regional or
     state environmental goals articulated in strategic plans and
     operating guidance; whether the case reflects appropriate
     state/federal roles; and the extent to which the case
     reduces public health risk, protects the environment,
     prevents pollution or enhances deterrence.

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     2.  the appropriate enforcement response;

     whether administrative,  civil judicial or criminal
     enforcement is most appropriate (See attachment 1 for
     criteria when judicial enforcement may be favored; bullet
     below for essential discussion of criminal enforcement
     screening).

     3.  the appropriate, considered use of innovative settlement
        conditions or tools;

     whether to seek environmental auditing, pollution prevention,
     contractor listing, suspension and debarment,  and whether to
     leverage broader compliance with outreach, publicity,
     training, and/or other requirements in enforcement
     settlements. (See attachment 2 for criteria where innovative
     settlement terms and tools may be favored);

     4.  potential multi-media and cross-statutory action; (which
     may alter the course any single program might otherwise
     pursue); and

     examining multi-media violation- status, multi-media
     compliance history, alternative statutory authorities which
     might better address a problem, multi-media impacts of
     proposed settlements and the need for triggering a multi-
     media team inspection in support of a possible and desirable
     multi-media enforcement case. (See attachment 3 for further
     discussion of these factors); and

     5.  effective integration of criminal and civil enforcement:

     reviewing violations for criminal enforcement potential,
     criminal enforcement leads for priority,  the criminal
     case/investigatory docket for the need for parallel or solely
     civil proceedings, and criminal cases* for innovative use of
     sentencing and/or probation requirements. (See attachment 4
     for further discussion of these factors).
     The cm* screening management structure established to
implement enhanced case screening also may have benefits in
facilitating the commitment and allocation of resources in support
of enforcement cases and in prioritizing cases in circumstances of
competing resource demands.

     Violations sy^ject to case screening are those potentially
suitable for federal enforcement, including those state-lead cases
for which the targets for timely and appropriate enforcement
response have been exceeded, violations of AOs and/or Consent
Decrees, referrals by the State, or other federal-lead violations
arising from self-reporting and inspections. (Violations handled

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bv field citations issued in the field are not subject to this
processl. These violations should be screened as early as possible
following identification so that undue delays are not encountered
or opportunities foreclosed. Further, screening can be a
sequential or tiered process. For example, screening for
appropriate enforcement response, innovative approaches, or multi-
media perspective would, in the vast majority of cases, follow a
decision that a federal enforcement response is warranted.

II.  Structure for Enforcement Gas* Screening

     OE has a strong preference for the use of face-to-face case
screening committees.  We believe, following consultation with the
Regions and review of their experiences to date, that it is the
most effective means to meet the screening goals outlined above.
However, Regions may choose variant processes that will work best
in their own particular circumstances, provided they meet the
criteria noted below.

A. Criteria for OB Acceptable Case Screening Proeea^

     In implementing the enforcement case screening capability,
several criteria must be achieved:

     1.  Decisions on case screening should not be unilateral1.

     2.  There should be an effective cross-media capability for
     coordinating multi-media enforcement initiatives,  information
     on compliance status and histories, making timely decisions
     on case consolidation, and/or devising settlement conditions
     involving more than one media.

     3.  There should be an effective civil/criminal coordination
     capability to address not only potential criminal enforcement
     actions and priorities but also the need for parallel or
     alternative civil enforcement proceedings to address
     environmental harm.  The capability should ensure timely and
     ongoing access to information which allows independent
     judgment and direct involvement of appropriate staff with
     experf^set in the review of those cases:

       (a) «JH| violations should be reviewed by media program
     enforcement personnel for criminal enforcement potential;

       (b) violations which cross the threshold (see Attachment 4)
  -. -    for criminal enforcement potential are screened both:
     1 For  a discussion  of the  meaning  of this  criterion with
regard to criminal enforcement, see Attachment 4, paragraph 2.

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           (1) by those with criminal enforcement
           responsibility; and

           (2) by media program enforcement personnel.

     The method chosen is a matter of Regional discretion, but
     must  reflect the sensitivity of access to criminal
     enforcement information.

4.  Internal policies and procedures should be in place  to
reinforce  screening  factors noted here.  The use of case screening
worksheets described below is an indispensable part
of this process.

B. Case screening Worksheet

     The attached worksheet, or revised worksheet(s) tailored to  a
particular Regions's use, is part of the internal policies and
procedures required  for  an effective regional screening
capability.  These worksheets are a complement to — not a
substitute for — the very important face-to- face interactions
among  key  players at appropriate points in the screening process.
We envision  that they would be used early in the case  screening
process to help assess what further screening and consultations
might  be necessary and to help identify early how an enforcement
case will  be developed.  Who completes the worksheet is up to each
Region to  decide.

     Elements may be added or the format of presentation adjusted
to facilitate use, but the questions on the attached worksheet and
substance  must be retained.  However, the assessment of  criminal
enforcement  potential may not be altered without consultation with
the Office of Criminal Enforcement Counsel, since it is  carefully
presented  to avoid compromising a criminal case during discovery.
We caution the Regions to exercise discretion in possibly
generating discoverable  material during the course of  screening
committee  sessions.  The case screening worksheet has  been
designed with this in mind.

     The wodcsheets  provide a systematic means of ensuring that
staff  explicitly consider the potential for innovative enforcement
settlement conditions and tools, a multi-media perspective, and
criminal enforcement potential in conjunction with other factors
traditionally considered in determining the appropriate
enforcement  response.  It introduces background information on
.complranee history within the same program and in other  programs
as well as information on the toxics release inventory for the
facility.  The worksheets build on the pilot system implemented in
Region I.

     While the issues raised by the worksheets may have  to be
revisited  at various stages in a case, most factors should be

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initially considered as early as possible in the process.  The
worksheets are to be retained as a formal part of case files to
facilitate periodic assessments of how the process is working and
to help improve our process over the coming years.

C.  Focusing and Phasing Case screening

     While all cases are "screened" to the extent that strategic
value is considered at some point in the process and the
appropriate enforcement response defined and reassessed, as
necessary, over the course of case development, there are ways in
which the Regions can phase in and focus, the enhanced case
screening envisioned here:

1.   Although we are encouraging Regions to examine multi-media
     compliance history, it will not be required until the OE data
     integration project is completed  because of the amount of
     work involved in obtaining violation histories from all
     media.  The OE data integration project should be completed
     by January 1, 1991.

2.   The Toxics Release Inventory fTRIl ia an important means of
     identifying high risk circumstances and the potential for
     pollution prevention to reduce significant risk at a facility
     which may be agreed upon through an enforcement settlement
     negotiation. Since use of the TRI is new to most regional
     office staff, Regions may establish their own criteria for
     cases for which TRI data will be sought. However, we would
     expect movement toward increasing integration of this data.
     Cases can be packaged and reviewed in ^W^^^Y fashion where
     the cases present similar violations and violator
     characteristics .  This may be particularly helpful for
     handling a group of cases involved in an enforcement
     initiative.  Single and multi-media compliance status should
     still be assessed at individual facilities covered by such an
     initiative since such information may affect settlement terms
     with the facility.  However, this information may be assessed
     after much cases are initiated where the Region decides that
     a pacJUpged and timely single-media initiative is the
               enforcement response for those violations.
     Regions aav further focus their case screening efforts bv
     defining categories of violations and violators and specific
     objectives which they do not believe would benefit from the
     review  and accompanying worksheets proposed here.  These
     exclusions from analysis should not be unilateral, in keeping
     with the spirit of the screening process itself.  The
     screening committee itself  is best suited to identify such
     exclusions.  Only those violator/violation categories for
     which there is no significant, identifiable benefit from the
     objectives listed should be considered for exclusion. Thus,

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     no enforcement case should be excluded from screening for
     current cross-media violations and multi-media impacts of any
     resulting remedy.  Further, cut-offs based solely upon
     penalty amounts or type of enforcement action (i.e.
     administrative or judicial enforcement)  are not appropriate.

5.    Regions with particularly large caseloads in which case
     screening would represent a substantial initial investment by
     regional staff, may phase-in screening through the first
     half, of the fiscal year.  In any event,  by the end of the
     second quarter of FY 1991 all violations subject to case
     screening defined in Section I above, must be part of the
     process.

OE recognizes that one outcome of case screening may be a regional
decision not to pursue federal enforcement or to defer action
based upon strategic value considerations.  OE requests
Headquarters programs to review current reporting and tracking
systems to assess whether new or revised procedures may be
desirable or needed to explicitly address such violations.

D.  Initiation of Criminal Investigations in Casts of Ongoing
    Releases or Discharges

    Prior to the initiation of a criminal investigation 2  where
there is an apparent violation involving the release, discharge,
or emission of a contaminant or pollutant which may continue
during the course of the investigation   an extra degree of
coordination and inter-program review is needed. Furthermore,
where there is an apparent or potential violation involving the
release, discharge, or emission of a contaminant or pollutant
which may continue during the course of the criminal
investigation, the SAC after consultation with the RCEC, before
opening criminal investigation, must inform the Regional program
personnel of his intention to open a criminal investigation,
providing sufficient information to enable them to assess the
facts.  The SAC should simultaneously provide, on a continuing
       Thi* policy is also  intended  to  include cases where there
may be no ongoing exposure but the risk or threat of harm is plain.
Examples  of  such cases include improper  storage of  ignitable or
reactive  waste,  an  eroding  lagoon,  and  falsification of drinking
water data.

     3 Consistent with Attachment 4,  paragraph 2,  some  initial
investigatory actions may commence without such prior coordination
if necessary to  further characterize the situation.

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                                 8

basis, non-Grand Jury 4 evidence of an ongoing release or
discharge which violates EPA requirements.

    Regional program technical staff must be consulted regarding
whether an ongoing release or discharge in fact does or may
present an unacceptable level or risk of harm before the
conclusion of the criminal case.  Their evaluation of the probable
risk is crucial.

    The RCEC's role .is as -a catalyst and counsellor to encourage
coordinated Regional decision making regarding criminal
enforcement, and, where a consensus is reached to advise on the
best legal procedures to obtain the desired results.  The RCEC
will also help by assuring that the Regional case screening
process works well and that any dispute is elevated and resolved.

III.

     OE has developed a recommended approach to enforcement case
screening.  We recommend that Regions establish formal screening
committees to coordinate enforcement activities and screen
enforcement cases.  See Charts 1 (a-c) for the proposed regional
screening structure and Chart 2 for existing regional mechanisms,
     4 Furthermore, should  the criminal investigation  result in
Grand Jury evidence which demonstrates that an ongoing release or
discharge of a pollutant or contaminant in fact does or may present
an unacceptable level or risk or harm before the conclusion of the
criminal case,  OCX shall  forthwith discuss with the  Government
attorneys assigned to prosecute the case whether to seek judicial
approval to disclose this evidence to the civil authority.
Note  that  some such  information  derived from  non-Grand  Jury
proceedings  may   also  require  special  handling   and  similar
restrictions to those posed by Grand Jury proceedings, for example,
if from a confidential source or from an undercover operation.
     5 Swortt lav enforcement officers have a duty to report to DOJ
apparent  criminal violations  by  an identifiable person,  while
Headquarter*   or  Regional  managers  cannot   veto   a  criminal
investigation, they can participate  in the setting of appropriate
priorities  among  various leads,  and  their  opinion  can  differ
regarding the advisability of a  criminal  investigation.   Should
thers be a difference of opinion within EPA regarding the relative
priority of  a criminal investigation or its advisability,  before
seeking  from DOJ  a  prosecutive determination  the  parties shall
follow the dispute resolution procedure referenced above.

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It should be noted that most of the Regions are considering
revisions to their current systems in keeping with the Strategic
Plan requirement for case screening.

l.   Continued reliance on initial screening on a single media
     basis, supported by case worksheets to promote awareness and
     consideration of broader strategic concerns:

     In all Regions, there are regular meetings between Regional
Counsel and program enforcement staff.  Screening takes place on a
single media program basis in meetings comprised principally of
the Enforcement Branch or Section Chiefs of the Program Divisions
and Regional Counsel.  We believe that for reasons of efficiency
and respect for the level of knowledge of the case at issue, this
level of screening must remain the fundamental point at which most
of the screening takes place.  If not already adopted, we propose
that these meetings be formalized as enforcement case screening
committees which meet at least monthly.  They would continue to
review violations in detail for appropriate enforcement response,
including identification of any judicial, criminal or multi-media
concerns, and the strategic value of any proposed action.

     Particular attention must be paid by these groups to
determining whether judicial enforcement is appropriate, whether
there are criminal and multi-media enforcement issues, and whether
the facility's compliance history  (viewed from a multi-media
perspective) and the nature of the violation merit the use of
innovative techniques.  To do this, case screening worksheets will
help to turn policy to daily practice by translating criteria for
case screening into something that will be considered on an
ongoing basis within the Region.  The worksheets will ensure that
those cases most deserving of multimedia considerations will be
adequately reviewed for referral to a multi-media process.

2.  Multi-media Screening Committee:

     It is also proposed that the Deputy Regional Administrator,
as the primary enforcement contact within the Region, convene
monthly a multi-media screening committee comprised of all key
Regional managers on enforcement matters. This group would likely
include thfeltogional Counsel, possibly with Regional Counsel
Branch Chi«» Enforcement Branch Chiefs and/or Program Division
Directors, the) Associate Regional Administrator, as appropriate,
and Environmental Service Division Director. This group would
review, in detail, cases identified as having a multi-media
concern.  Regional Counsels' offices can provide a useful bridge
between the single and multi-media screening committees by helping
to prepare agendas based upon those cases identified during single
media screening as having multi-media enforcement potential.
Review of cases by the multi-media screening group should not
unduly delay processing of single-media cases.  As a group, the
multi-media committee also could review proposed judicial

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                                10

enforcement actions for a pattern of strategic value, or areas
missing a judicial presence.

     Several Regions currently have this type of multi-media
screening committee structure in place devoted to case screening.
Other Regions have multi-media meetings with a broader agenda but
at which these multi-media coordination issues may be discussed if
they arise; still other regions are actively considering multi-
media screening meetings. It is possible that the Regional Counsel
could fulfill this function if there is sufficient capability to
identify multi-media concerns, assisted with the proposed case
worksheets.  Nevertheless, the multi-media committee is
recommended here to provide region-wide leadership that will
facilitate a cross-media approach to facility non-compliance — we
believe it will best serve to meet the Administrator's goal of 25%
multi-media cases.  It also provides an opportunity for groups
such as the ESOs and programs with broad authorities to offer new
perspectives on how the agency might better address certain types
of violations.

3.  Criminal/Civil Integration Screenings

     To assure proper integration of civil and criminal
enforcement, we offer several approaches.  Each includes timely
and ongoing access to information for staff with criminal
enforcement expertise in the review of cases with any criminal
enforcement potential.

     Ideally, the Special Agent-in-Charge (SAC)6 their  designees
and/or the Regional Criminal Enforcement Counsel (RCEC) would be a
part of the deliberations in the single media screening committees
(see Chart Ib).  However, in most Regions this would prove
impractical given the number of.programs meeting each month and
the sizable number of violations being screened with no criminal
enforcement potential.  The Regions also could use the current
routine meetings with the SAC or RAC and RCEC as a third level of
case screening committee (see Chart la).  The scope of review in
most of these meetings has not been as broad as that proposed
here. Specifically, this guidance envisions review of the full
range of vfttftations which have been identified through the civil
enforcementprocess for criminal enforcement potential (in detail
for those afeove a threshold with periodic reviews of the basis for
threshold determinations) (see Attachment 4), review of criminal
leads and investigations for priority, and review of the need for
parallel or alternative civil enforcement. Another approach could
provide a documented process of case-by-case consultation on any
     6 As  used  in  this guidance,  "SACH also  includes Resident
Agents-in-Charge, "RAC".

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                                11

cases with criminal enforcement potential with either the SAC or
RCEC (see Chart ic).  This would be supplemented with the use of
the current routine reviews of the criminal enforcement docket.
All three versions are presented in the Charts.

     If a Region attempts to institute screening without face-to-
face meetings, it will become even more important for the SAC and
RCEC to be kept apprised of the status of regional enforcement
cases to provide the necessary judgments on the agency's course of
action in particular cases.

     The challenge presented by criminal case screening is that it
cannot be a one-time event.  At any time during the development of
a  "civil" case, information gathering, discovery, etc., may
disclose evidence of criminal conduct requiring the SAC or RCEC to
coordinate with and seek a prosecutorial judgment by DOJ.
Similarly, during the development of a "criminal" case OCI may
develop evidence of sufficient environmental harm that would
necessitate commencement of a civil action seeking injunctive
relief, requiring consultation and coordination with regional
technical program staff and ORC -civil attorneys. The regional
process should reflect this need for ongoing criminal/civil
enforcement integration and appropriately caveat any
determinations as to the preferred agency response based upon the
stage of review and availability of evidence.

IV.  Relationship Between Strategic Planning and Case screening

     The more effectively we carry out the strategic planning
function, the easier case screening will become. Through strategic
planning, the Region can target, in advance, repeat violators for
innovative settlement conditions or use of contractor listing,
facilities deserving of multi-media inspections and follow up
enforcement,  geographic areas, pollrtants, industries or
facilities of concern.' Further, a significant violation in one
program may lead to a decision to investigate further for its
multi-media case potential given the nature of the source and the
violation.  The least disruptive approach would stress early
identification of such opportunities.
      RegioMTalso should make use  of  Headquarters targeting
 information: and early identification  of where  judicial  legal or
 program precedents are needed in a program  area.

 V.   Oversight  of the Screening Process

      The Regions are asked to report  on their  approach  to case
 screening in the FY 1991 Regional  Enforcement  Strategic Plan
 submission to  OE at the end of the first  quarter FY  1991.  As the
 regional systems evolve over the year, we request that  OE be kept

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                                12

apprised of any changes.  The regional systems should be fully
operational by the end of the second quarter FY 1991.

     In addition, our Regional Counsel audits, along with those we
conduct in cooperation with the Headquarters program offices of
regional program operations, will review implementation of this
guidance, including use of case screening worksheets, and how
effective different approaches are in meeting our screening
objectives.
     In closing, enhanced enforcement case screening by the
Regions, in conjunction with strategic planning, is central to
meeting the challenges and achieving the new directions we have
set for our enforcement program.  The Administrator's goals for
criminal enforcement and multi-media cases, outlined in his
September 25, 1990 Address to the Senior Executive Service, make
institution of effective screening all the more urgent. I look
forward to continuing to work with the Regions in finding the most
effective and efficient ways to see these activities implemented.

Attachments

cc:  Deputy Assistant Administrators
     Headquarters Compliance Directors
     F. Henry Habicht II
     Nancy Firestone
     Daniel C. Esty

bcc: OE Managers

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                                              Chart 1 a
    RECOMMENDED REGIONAL ENFORCEMENT CASE SCREENING COMMITTEES
  11/9
who
              single media civil case
                   screening
                                                                       civil/criminal
                                                                        Integration
Program Entombment Branch /
  Section Chief
Regional Counsel Branch Chief
       multi-media case
         screening
Deputy Regional Administrator
Regional Counsel
Environmental Service Division
Regional Division Directors or
  program enf. Branch or Section
  Chiefs: RC and Program
RC Criminal Enforcement
SAIC/RAIC
Regional Division Directors
 or Enforcement
  Branch/Section Chiefs
what
Violations potentially suitable for
Federal Enforcement:
e.g. AO and CO violation*; Slat* referrals;
stale-lead violations exceeding timely and
appropriate response targets; repeal violators
Application of Regional/
Thresholds and HQ Guidance
Cases w/multi-media violations
Cases w/ multi-media impacts
Cases w/ multi-media violation
  history
Cases targeted for multi-media
  inspections
Criminal Leads
Criminal Docket
Potential criminal cases
 (civil docket in summary)
how
often
monthly
monthly
monthly/as cases with
criminal potential are
identified
why
No Action/Admin/Judicial Enf.
Potential criminal enforcement
Application of innovative tools or
 settlement conditions
Multi-media implications
Potential Consolidation of Multi-
  media cases
Coordination of cases with
  multi-media impacts/settlements
Review judicial case profile in
  general for strategic value
Coordination of multi-media
  enforcement initiatives
Criminal leads for priority
Criminal docket for civil
  enforcement requirement
Selected individual cases
  for criminal case potential

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  11/901
  who
                       Chart ib
     RECOMMENDED REGIONAL ENFORCEMENT
            CASE SCREENING COMMITTEES
               single media civil case
                    screening
                                        multi-media case
                                           screening
 Program Enforcement Branch /
  Section Chief
 Regional Counsel Branch Chief
 RC Criminal Enforcement or
  SAIC/RAIC
 Deputy Regional Administrator
 Regional Counsel
 Environmental Service Division
 Regional Division Directors or
 Program Enf. Branch or Section
  Chiefs: RC and Program
 RC Criminal Enforcement or
  SAIC/RAIC
 what
          Violations potentially suitable for
          Federal Enforcement:
          e.g. AO and CO violations; State referrals;
          state-lead violations exceeding timely and
          appropriate response targets; repeat violators

          Application of Regional Thresholds
           andHQ screening guidance
                                Cases w/multi-media violations
                                Cases w/ multi-media impacts
                                Cases w/ multi-media violation
                                  history
                                Cases targeted for multi-media
                                  inspections
how
often
 monthly
  monthly
 why
No Action/Admin/Judicial Enf.
Application of innovative tools or
 settlement conditions
MultNMdla implications
Potential criminal enforcement
Criminal leads for priority
Criminal Docket for civil
  enforcement requirement
Potential Consolidation of Multi-
  media cases
Coordination of cases with
  multi-media impacts/settlements
Review judicial case piofilfljn
  general for strategic value
Coordination of multi-media
  enforcement initiatives
                                  civil/criminal
                                   integration

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  11/90.
 who
                                 Chart 1c
              RECOMMENDED REGIONAL ENFORCEMENT
                     CASE SCREENING COMMITTEES
                single media civil case
                     screening
                                         multi-media case
                                            screening
 Program Enforcement Branch /
   Section Chief
 Regional Counsel Branch Chief
Deputy Regional Administrator
Regional Counsel
Environmental Service Division
Regional Division Directors or
 Program Enf. Branch or Section
  Chiefs: RC and Program
what
Violations potentially suitable for
Federal Enforcement:
e.g. AO and CD violations; State referrals;
state-lead violations exceeding timely and
appropriate response targets; repeat violators
Application of Regional Thresholds
  and HQ screening guidance
Cases w/multi-media violations
Cases w/ multi-media impacts
Cases w/ multi-media violation
  history
Cases targeted for multi-media
  inspections
how
often
  monthly
monthly
 why
 No Acti'on/Admin/Judicial Enf.
 Application of innovative tools or
 settlement conditions
 Multi-media implications
        L criminal enforcement
Potential Consolidation of Multi-
  media cases
Coordination of cases with
  multi-media impacts/settlements
Review judicial case profile in
  general for strategic value
Coordination of multi-media
  enforcement initiatives
                                 civil/criminal
                                  integration
   o Document consultation with criminal enforcement personnel on threshold
     cases with criminal enforcement potential
   o Use of routine meetings for review of criminal docket and leads

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8/i a
CHART 2:  CURRENT REGIONAL SCREENING STRUCTURES
Regions
1. Single media meetings/
committee*
A. Who meets:
Program Division Director
Program Branch/Section Chief for
Enforcement
Regional Counsel Branch Chief
ESD
Criminal SAIC/RAIC/OCI
DRA/RA
RC/DRC
B. How often:
C. Issues Addressed:
Admin/Judicial Civil
Innovative tools/settlements
Criminal Enforcement potential
Hunt-media potential/Issues
II. nultl-medleX meetings/Commute*
(Civil)
A. Who meets:
DRA
RC
Division Directors
Program Branch/Section Chief for
Enforcement
Regional Counsel Branch Chiefs
ESO
Criminal SAIC/RAIC
B. How often:
C. Issues Addressed:
Admln/Jud Civil
Innovative tools/settlements
Criminal Enforcement potential
Multi-media potential/issues
Data Integration/Information
III. Criminal/Civil Enforcement
Relationship Meetings/ Committee
A. Multi-media?
B. Who meets:
DRA
RC/crtminal attorney
Division Director/Deputy Division
Diractar
Program •ranch/Section Chief for
EnffcfMMnt
Regions* Caunsel Branch Chief
ESO
Criminal SAIC/RAIC
C. How often:
D. Issues Addressed:
Civil Docket for Criminal
Criminal Docket for Civil
Priori tu of Leads
1



X

X
4



mo
I
X
X
X
X




X



X


2mo

X
X

X


N


X
X

X



X
mo




II



X

X




mo

X







X

X

X
4
X
Itno

X


X
X

V

X
X
X





X
2mo


X
X
III



X

X


X
X
mo

X

X
X



X
X

X

X


mo

2



X

N

X
X


X



X
mo



X
IV



X

X
4
X


mo

X






















N





X

X

X
mo

X
X
X
V



X

X




mo

X

X
X






X

X


2mo

X


X
X

N

X
X


5



X
mo

X
X
X
VI



X

X



X
mo

X






3
3
3



3

mo







V

X
X
X

X



X
mo

X
X

VI



X

X
X

X
X
mo

X
X
X
X



3
3
3



3

wk



3
3
X

V

X
X
X



X
)l

X
0

X
X

VIII


4
X

X
X

4
4
mo

X
X
X
X



X
X
X
X

X
X
X
Q

X
X
X
X


V

X
X






X
mo

X
X
X
IX


X
X

X



X
mo

X

X
X



3
3
3




3
Q

3
3
3
3
3

N


X


X

X

X
mo

X


X


X
X

X
X

X
X
mo

X
X
X
X



X
X
X
X


X

mo


X
X
X
X
















         Footnotes:
         I) Worksheets foster consideration of these factors in all cases.
         2) Only proposed Judicial referrals ere dlscusssd.
         3) Meeting is opportunity far screening Dut it is not sole purpose.
         4) May attend as observer.
         5) Meeting is expanded every other month to include specific program
         participation.

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                                13

Attachment 1

Choosing between administrative or judicial enforcement

     For reasons of efficiency, administrative enforcement will
continue to be the norm in programs with adequate administrative
enforcement penalty authority. Screening must provide the
necessary impetus to evaluate whether cases which would otherwise
be handled administratively, are deserving of judicial action.
Factors to be included in a determination of whether judicial
enforcement is appropriate include:

     -  the degree to which the case merits a strong signal of the
     agency's resolve in dealing with violations posing
     significant environmental harm or risk given the nature,
     magnitude, duration of the violation;

     -  the size of the proposed penalty, particularly in relation
     to any statutory caps;

     -  compliance history both within the program and in other
     programs with particular view toward the need for increased
     penalty assessment or judicial response to violations of
     Administrative Order and Consent Decree conditions;

     -  the need for the greater deterrent value of. judicial as
     compared to administrative enforcement in sending a message
     to the source or to the regulated community, particularly
     from the publicity surrounding judicial action, and including
     consideration of the expectation that the facility will or
     will not comply with an administrative order.

     -  whether the firm or source category is targeted by
     Headquarters or the Region* for coordinated enforcement
     initiatives.  .

     -  whether legal or program precedents are needed;

     -  whather^ the. judiciary may be needed to oversee a
                remedy or to impose injunctive relief;
               there is  a  repeat violator within or among media
     pr«

     -  whether consolidating multi-media violations require a
     judicial  forum to  join enforcement procedures. ,

     -  whether there is  criminal enforcement potential (see
     attachment 4).

     -  need for extensive discovery which may be more available
     in judicial cases.

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                                14

Attachment 2

Identifying candidates for innovative settlement terns or
enforcement tools.

     Each of the following innovative settlement conditions or
enforcement tools should be explicitly considered and used in
either administrative or judicial cases where the benefits could
justify potential delays in case resolution or additional regional
resources.

     -  potential for waste minimisation or pollution prevention:
     pollution prevention conditions in enforcement settlements
     are particularly encouraged where 1) elimination or
     substitution of chemicals offers the best chance to end
     recurring violations; 2) there would be no negative
     crossmedia impacts; there are known technological and
     economically feasible options for pollution prevention.

     -  potential for leveraging the single enforcement action to
     reach the broader regulated community through source
     outreach, communications and/or training opportunities. This
     is particularly encouraged where the category of source or
     type of violation is one which has a particular compliance or
     environmental problem or one which is difficult for the
     agency to detect;

     -  need for correction of underlying management problems
     through the use of an environmental audit provision or use of
     contractor listing, or of suspension and debarment warranted
     by the type of violation and compliance history;

     •  potential value of contractor listing to correct a
     recurring or ongoing violation in air or water or suspension
     and debarment to address repeat violators in any program.

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                                15

Attachment 3

Ensuring a multi-media case screening perspective

1.  Multiple violations at a single facility: The Regions should
have a system in place for identifying violations in more than one
program and for making explicit decisions as to the merits of
consolidating cases or adjusting proposed settlement terms (e.g.
penalty calculations and audit provisions) before commitments are
made to pursue administrative or 3udicial enforcement in any one
program.

2.  Multi-media impacts of proposed settlement conditions:
Violations may involve only one media program, but the remedies or
the impacts may involve, other programs, requiring permits or other
approvals for implementation. The Region should have a system in
place to identify such cases and to initiate the necessary
coordination and support across divisional lines.

3.  Multi-media compliance history: Regions should screen selected
cases for facility compliance history in other programs as well as
the program attempting to address a particular violation.
Violators with a history of multi-media violations are candidates
for increased penalty assessments and special settlement
conditions such as environmental auditing to address underlying
problems leading to a poor performance record.  Also, because
compliance monitoring is not always conducted at a frequency to
allow detection of violations, multi-media violation history may
be an indication of more significant media specific problems than
those identified.  Screening for multi-media facility violation
history will be facilitated by the completion of OE's data
integration project.  Specific firms with a poor compliance record
nationally may be identified by OE Headquarters targeting
information and should be taken into account as well.

4.  Selection of beet statutory approachr Some environmental
problems are best addressed by using other statutory provisions
than those available within the program in which the violation was
identifiecW^The? Region should establish procedures for
identifyJiHlfeen these other statutory authorities should be
considereK&ki how such decisions are to be made.  Problems posed
by grouncMJipr contamination, and toxic chemicals are prime
           J"

5.  Coordinated inspection planning/enforcement initiatives:
Regional systems: should provide a mechanism for deciding whether
to initiate multi-media team inspections when investigating a
violation in a single program. Such inspections would be initiated
for prime candidates for possible multi-media case development.
Systems should also provide for coordination of case screening
considerations for multi-media enforcement initiatives.

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                                16

Attachment 4

Integrating civil and criminal enforcement activities:

All violations ripe for possible federal enforcement with criminal
enforcement potential should be reviewed for possible criminal
violations; proposed criminal cases should likewise be reviewed
for needed injunctive relief.  Criminal enforcement cases with
multi-media aspects should be identified with systems in place to
coordinate case development, sentencing and probation terms.

1.   Reviewing proposed violations for criminal enforcement
     potential.

There should be some opportunity for the SAC and/or RCEC to review
all violations beyond a certain threshold for possible criminal
enforcement.  The threshold for review by personnel with criminal
enforcement responsibility is as follows:

     The presence of both (a) misconduct which threatens
accomplishment of a specific nationwide or regional EPA program
goal or priority (determined by reading EPA's Operating Year
Guidance, as supplemented by the stated priorities of the EPA
Regions), and (b) any one or more factors indicating aggravated
environmental misconduct, specifically, one or more of the
following:

     (1)  history of repeated violations;

     (2)  potentially deliberate, knowing or willful misconduct;

     (3)  concealment of misconduct or .falsification of required
          records, including failure to report where another
          aggravating -factor is present;'

     (4)  tampering with monitoring or control equipment;

     (5)  business operations of pollution-related activities
          without a required permit, license, manifest, or other
          •Bfchorizing documentation; or

     (6)  actual illegal discharge, release, or emission, or other
          facts demonstrating the presence or potential for harm
          to the environment or human health.

The larger the number of EPA priorities threatened, or number of
aggravating factors present, the less serious any single priority
or factor must be.

Regional program staff and attorneys should be encouraged to
discuss any potential criminal enforcement cases with the RCEC
and/or SAC.  In general, the planning process for identifying

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                                17

program priorities for criminal enforcement is described in a
memorandum from Edward E.. Reich, March 28, 1989, entitled,
"Planning and Priority-Setting in the Criminal Enforcement
Program."

2.   Reviewing criminal enforcement leads/investigations for
     program priority.

     With the growth of the criminal enforcement program, it  is
essential that communications between the criminal and civil
enforcement program provide an understanding of how criminal
enforcement can most effectively further a program1 s
environmental and compliance goals.  However, Special Agents  must
bring to the attention of DOJ any substantial evidence of a crime
by an identifiable suspect, and DOJ exercises independent
prosecutorial judgment with regard to all evidence of criminality
which comes to their attention.  Despite the caveat that only DOJ
may terminate a formal criminal investigation matter, the regional
program and Regional Criminal Enforcement Counsel must be asked by
the SAC to screen and comment on the potential benefits of all
.cases deriving from leads and leads received by the Special
Agents.  Such consultation is not intended to preclude initiation
of investigatory activities needed to characterize the situation,
for screening purposes.

     If the Regional program or legal personnel involved in
screening believe that a different case is a greater investigative
priority or that a particular case is not appropriate for
prosecution, while at the same time DOJ is requesting OCI's
investigative assistance on that particular case that it views as
appropriate for prosecution  (or the SAC disagrees with the EPA
screening committee or already has evidence of criminality),  the
SAC is not free to act unilaterally.  Instead, the SAC shall
activate the internal EPA dispute -rsso^ution procedure before
referring the case to'DOJ or seeking from DOJ a prosecutive
determination.  The outcome of the EPA dispute resolution
procedure determine* whether EPA will not invest further resources
in a criminal investigation, which DOJ then may decide to pursue
independently *
         ^CfSf'. ..
3.   Revifppff the criminal case docket for the need for parallel
               seeding*.

If there ia the possibility of: l) an imminent and substantial
endangerment, and/or 2)  apparent violation involving an ongoing
discharge or release that may cause harm during the processing of
a criminal enforcement action,  it  is essential that the Regional
program office and ORC civil personnel be Informed by criminal
enforcement personnel in a timely manner.  The program should have
an opportunity to request either that a parallel civil enforcement
action be pursued, that  criminal action not be pursued in favor of
civil action, or that the program be closely involved in the

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                                18

progress of the criminal enforcement action, including the design
of terms of probation and recommended sentencing and contractor
listing or suspension and debarment considerations.


4.   Reviewing criminal enforcement casea for sentencing
     provisions and potential probation requirements

The screening process for integrating criminal and civil
enforcement needs to include a review of the criminal docket by
the program and regional counsel staff of affected offices to
assist in developing and recommending terms for sentencing and
probation that properly reflect the source's compliance history
and environmental concerns.

-------
        ;n nformat.op 3$ of .date./
        31' violator'
                                                      -•vised
   Violation.

   Type of Business/Manufacturing Process:      (SIC?)
   (including indication of whether violator is a federal contractor/owner/operator or American Indian tribal gov't
   Repeat violator in same program?
   Recurring Violation ?
   Continuing Violation ?
                                           Identify violations:
   Violations under other statutes or programs?
   statute:              Violation:              current enforcement?
                       (known or suspected)
   Multi-media impacts of violation or
   remedy?
   Toxics Release Inventory:
    media:        total:      chemical substances
  poiiuutn trevefliiM poienuai:
  a. Toxics Release Inventory reduction potential?  __
  b. Recurring violation amenable to pp?          	
  c. Known feasible pp option?                   	
  J. Program guidance/other?                   	
  EnviroMMnUI Autfitinf CMrfititaa Ptttntial:
  a.  Underlying management problems likely?     	
  b.  Likely pattern of violation at other facilities?	
  Contractor listiftf PtUitiial:
  a.  Recurring/continuing viol, of CAA/CWA       	
  b.  Prior or existing enforcement Action         	
  c.  Multiple viol, facilities by same owner        	
  StiseensiM t»4 DttarMMi:
  a.  Poor Performance                         __
  b.  Misconduct/Lack of Integrity                	
  c.  Repeat Violators                          	
  Civil Judicial Etjfirn^jrt P»U«ttok
  a.  legal or program i
  b.  need to show re
  c.  repeat or multi-
  d.  need deterrence mwaipltjudkltl action
  e.  judiciary neededroverse* remedy/impose relief.
  f.  desire to consolidate multi-media case
  g.  substantial penalty
                                                              Potvnllil:
                                                 a. Current Violations
                                                 b. Multi-media impacts
                                                 c. Multi-media History of non compliance
                                                 d. Use of other authorities
                                                 lmwv*tiv« S«UltfiMfit
                                                 a. AOR potential
                                                 b. Field Citation potential (notice with
                                                    settlement)
                                                 Levcraaiaf broad) 0«Urr«nc«:
                                                 a. Industrial sector w/ compliance
                                                    problems?
                                                 b. Likelihood that training,
                                                    publicity.
                                                 •  ' technical assistance
                                                    would enhance compliance?
1 TTI
StoW
                                 row
                                                 a. potential document falsification
                                                 b. unauthorized discharge/ emission/shipment
                                                    or release
                                                 c. monitoring or control equipment tampering
                                                 d. potentially deliberate/intentional/knowing
                                                 e. repeated violations
                                                 f, priority violation for.crimlnal enforcement
                                          y uw
                                                          process ana
                                                       rncy worn produci privileges vono may
also be a privileged attorney-client communication).  Conclusions or recommendations are intended solely as preliminary
information for government personnel. This worksheet contains tentative conclusions and staff-level recommendations and
 oes not create any rights, substantive or procedural, or defenses, as they are not binding on the Agency or (XXI.
      also civil judicial enforcement potential criteria which may favor either a civil or a criminal enforcement  response.
   choice between those options being a matter of degree. Evidence of any of these factors.whenever identified, will be
   jened by the appropriate representatives of the Office of Criminal Investigations and regional criminal enforcement
attorney.

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CM.1-3

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GUIDANCE ON EVIDENCE AUDITS OF CASE FILES
EPA GENERAL ENFORCEMENT  POLICY IGM - 20
                      UNITED STATES ENVIRONMENTAL
                          PROTECTION AGENCY       ___

                                        DEC 301983
                      EFFECTIVE DATE:

-------
       1-UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
                        WASHINGTON. D.C. 20460


                            DEC 31
MEMORANDUM                                             !

SUBJECT:  Guidance for Evidence Audit of Case Files for
        •-  Civil Referrals
FROM:     Courtney M. Pric<
          Assistant Administrator fohr Enforcement and
            Compliance Monitoring

TO:       Assistant Administrators
          Regional Administrators, Regions I-X
          Regional Division Directors, Regions I-X
          Regional Counsels, Regions I-X                  ''•

      I recently forwarded to you a draft policy relating to
the performance of an evidence audit in all cases which were
to be referred to Headquarters for possible judicial enforcement,
and invited comments upon that draft policy.

     I have received comments from many of you, and have
considered them carefully.  Most of the comments were directed
to the requirement that evidence audits be mandatory in all
cases which were about to be referred to Headquarters.  While
1 firmly believe that evidence audit would be useful in all
cases, 1 agree that it should not be mandatory.  I have,
therefore, revised the policy so that those cases which, in
the opinion of the Regional Administrator, are sufficiently
complex or involve substantial quantities of documents, may
be subjected to an evidence audit before referral at the
option of the Regional Administrator.  After referral, I may
order an evidence audit should I believe one to be warranted.

     Attached is the final policy on evidence audits which
incorporates the approach described above.  Your comments on
the draft were appreciated, and I would welcome additional
suggestions as experience with evidence auditing is gained
under this policy.

Attachment

cc:  Director, N'EIC
     Deputy Adr.. i.. strator

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                             GUIDANCE  FOR EVIDENCE  AUDIT  OF
                             CASE  FILES  FOR  CIVIL REFERRALS
            INTRODUCTION        " "      .  • • •   •      -      -   -

            Cases developed by EPA, pursuant to the environmental «tatutes,
            and referred to  the  Department  of Justice  for potential  civil
            litigation,  must  be  based  upon  rigorously  documented  evidence
            and supporting  data   in  order   to minimize  delay  in   filing,
            facilitate discovery  proceedings,  present  a  convincing  case  for
            the EPA  and DOJ  attorneys  engaged in  pre-trial  negotiations,
            and finally,  to  prevail  in  the  courtroom.   EPA  Headquarters
            and Regional staffs have  demonstrated  widely varying  approaches
            to the  provision  of   well-ordered  referral  packages  and  the
            supporting documentation.

            The types and  volume  of documents  relating  to  a case are  often
            overwhelming.  For instance,  a  single  hazardous  waste  case  may
            involve 100,000 or more documents.  The  attorneys  are  confronted
            with difficult tasks of assembling and organizing  all  documents,
(            preparing witness lists, and  extracting  information necessary to
L-
:*        •   conduct interrogatories and  depositions.   Documents  supporting
* js
'3           EPA civil referrals  may  originate in  Regional  and Headquarters
M
•i           program offices,  State  files and/or contractors performing sup-
            port services for the  Agency.  Records  obtained frotr, the  prospec-
            tive defendants are often so voluminous  and/or disorganized that

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it is  difficult  for the  EPA/DOJ case management team to effec-
tively review  them.   Lack  of  sufficient assembly and organiza-
tion of  this material becomes obvious at the time of discovery
(production of documents)  or  during settlement_and negotiation
discussions.  The consequences may  include unknowingly exposing
ease strategy, inadvertently  releasing  privileged  or confiden-
tial material, or be ing'unaware of documents that could strength-
en or  weaken  the case.  The  Agency position  is vulnerable to
attack if  the  EPA/DOJ case management  team is  not  assured of
the integrity  of the  supporting documentation, as  well  as  a
case file  that  is  organized  for  rapid and  efficient  access.
Indeed, attack of the government's  documentation and procedural
weaknesses is now being advocated in journals and papers of the
legal profession as a tactic for defending attorneys.

Evidence Auditing

An evidence audit includes  the review, inventory and organization
of the documents that make  up  a  case  file.   The  audit  of  a
simple case may  involve  only  the assembly and handwritten com-
pilation of the  documents present and a  review of the case files
to ensv.re  that all  pertinent  documents  are present.   The audit
of a highly  complex  case  involving  large  numbers  of documents
may involve, in addition to assembly and inventory, computerized

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listing and sophisticated  categorization,  construction  of-evi-
dence profiles, and elaborate formatting as  an aid to understand-
ing the material content of the documents.   These audits assist
case attorneys  in  their preparations  for  pre-trial -and trial
phases of Agency litigation efforts.  The evidence audit system
is designed to:  (1) establish an overall case document control
system,  (2) provide  quick  and complete  access  to  recordsf  and
(3) provide a means for assuring admissibility of the evidence.
The system  is  flexible  to  accommodate  the  increase  of  material
as the  case progresses  and  is  adaptable  to  changes   in  case
strategy.

With the advent of the hazardous waste enforcement programs and
the conduct of  a major  portion of  the  Agency's hazardous waste
site investigations  by   contractors,  the  National  Enforcement
Investigations Center  was  assigned  responsibility  for making
evidence audits available  to Regional  and Headquarters staffs
for enforcement case  referrals developed as a  result  of these
activities.  Accordingly,  an  evidence  audit  capability has now
been available for approximately three years and is extensively
used and endorsed  by  Regional and Headquarters case management
teams who have availed themselves of this service.

Evidence audits  lend a  major advantage to  the  case  develop-
ment process;  enhancing  the supportive  rationale  and  develop-
ment of  legal  strategy  of cases;  detecting flaws  in  evidence

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!   ~i~e~~:     !   '           '~
\                     	
I            with timeliness  that  permits  repair;  the  avoidance  of presenting
I  •          questionable  evidence in the  court  room;  and perhaps most  iapor-.
:••-         rantly,  conserving  the  time and  case-handling  capacities of the
.
            case attorneys and  Regional and  Headquarters Technical  staff.
            PROPOSED  PROCEDURE

            It  is  recognized  that EPA  cases vary  greatly  in tents of com-
            plexity involving volune and  types of records generated.  The
            scope  of  the  audit  should  be  tailored to  the  complexity of the
            case and  to the number  of  documents involved.

            Because each  case is unique,  and not  all  cases nay require an
            evidence  audit, the decision  qn whether an evidence audit will
            be  performed,  either for cases referred directly to the Depart-
            ment of Justice by  the  Region or before referral to Headquarters
            Office of Enforcement and  Compliance  Monitoring prior to trans-
            mittal to the  Department,  will be made by the Regional Administra-
            tor or his/her designee.   For those cases referred to the Assist-
            ant Administrator for Enforcement and Compliance Monitoring,
            the Assistant  Administrator may require an evidence audit after
            referral  by the Region  and prior to transmittal to the Depart-
            ment of Justice,  should it become apparent during the review
            process thac  such an audit is necessary.  In  general, the
            audits should  include:

                o    document,  assembly
                o    document  organization and review

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      o     evidence profiles
      o     document storage and retrieval
"Each  of  these  elements Is discussed briefly in the following  •
 sections.

 Documcat Assembly

 The  case management  teas  is  responsible for identifying all EPA
 and  contractor groups generating  records  for  the ease.  Each of
 these organizational components should be instructed  to gather
 and  transmit  complete files  to the Regional case attorney  or
                                          •
 Headquarters  case attorney  (for nationally managed cases).
 Continuing investigation  and data collection,  if. any,  should be
 described  in  the transmittal memo from the document generating
 group to the  case management team and a date  specified when the
 remaining  documents  will  be  transmitted.  The attorney should
 also  gather all of the  documents  obtained from the prospective
 defendant(s)  and place  them  in one location for  review.

 The  NEXC Contract Evidence Audit  Team (CEAT)  can provide assist'
 ance to  Regional and/or Headquarters  ease management  ttaas for
 identification of organizational  elements generating  documents
 participating in the case and to  track receipt of records.  The
 teas can also assist in  the  assembly  of documents.

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         »Document Organization and Review
j
i
i          This process establishes a complete case file of readily retriev-
          able records.   The  case management team decides  on an organiza-
          tional format.  A variety of formats is available  (chronological,
          by subject  matter,  author,  recipient,  type of  document,  etc.).
          Once this  decision is'  made,  the  documents  are examined  by the
          Evidence Audit  Team  and placed in the proper  order.  Each docu-
          ment is  stamped with a serial number and  pertinent  identifying
          information is  recorded on an inventory sheet.  Computer services
          enhance this effort  and can  provide  keyword  search  capability.
          Computerized document databases are accessible  to all members of
          the case management team and printouts can be provided to facili-
          tate document 'retrieval.   Databases  are  secured and  access is
          limited to  those persons  authorized  by the case management team.
          In addition to  describing each  document,  the  review process is
          designed to identify originals, duplicates, confidential business
          information, enforcement  sensitive records, privileged  material
          and evidentiary records.

          Files obtained  from  the prospective  defendant(s)  are also organ-
          ized and  reviewed  in  a  similar  manner.   As  new  documents are
          generated or received,  they are added to the system.

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Evidence Profiles

Evidence profiles are  graphic or narrative presentations  of  the
history and chain-of-custody of.evidence from the time of collec-
tion through final disposition.  They are particularly useful for
demonstrating integrity  of  samples  and  analyses where  multiple
laboratories, field teams, or other entities are involved.   Field
•nd laboratory records must  be located  and audited.   Information
documenting the  transfer,  handling,  and storage  of  samples  is
extracted and summarized.  The profile  identifies the following:

     o    when evidence was collected
     o    who collected it
     o    all transfers of custody
      •
     o    when received by a laboratory
     o    who received it
     o    how it was secured
     o    who performed analytical tasks
     o    when tasks occurred
     o    where samples are stored after analysis

The source and serial  number of documents containing this  infor-
mation is also recorded.  This procedure enables the case  attor-
ney to assess the adequacy of sampling and  analysis records and to
rehabilitate deficient areas  in the paper trail.  The goal is to
demonstrate integrity  of the  evidence  in  order to  arrive  at a
stipulation for ur.contested entry of  the data.

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                                                                  8
 Document Storage and Retrieval

 Completed files oust be controlled to provide quick and complete
 access to the documents and .to prevent, deterioration of the filing
 •ystem.  Document control procedures oust be followed to keep
v track of the location and distribution of all records.  A document
 control officer (DCO) or the case attorney oust assume this respon-
 sibility.  Files should be securely stored and Bade available only
 on a check-out basis.  Computerized inventories enable multiple
 users of the files to identify documents they need to access.

 The NEIC, through its evidence audit capability has developed an
 additional litigation support service to assist Regional case
 management teams with large and complex cases.  The procedures
 provide for assembly of records, categorizing, stamping, and in-
 ventorying the documents, and making microfiche copies.  A com-
 puterized listing of the documents is prepared which includes the
 following information:
      o    document control number
      o    document date
      o    document type
      o    source of document
      o    author
      o    recipient
      o    title or subject

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»~   •^—!•-!.—.	'—^—*—*— ——^J-J....- • >
     Information retrieval can be selected on any of these categories.
     Complete microfiche sets  can  be provided  to all members  of  the
     litigation team and hard copies can  be  made available as needed.

     This procedure enables the team to work with  the information while
     keeping the original files intact.

     The evidence  audit procedures  described  above  are  intended to
     lead to admissibility  of evidence and to  assure  that supporting
     documents for allegations  listed  in  the  complaint are controlled
     and available.

     OPERATIONAL OUTLOOK

     Based on  historical  data,  completion  of  evidence  audits  in re-
     sponse to  requests for  assistance  from the  NEXC Evidence Audit
     Team can  be expected  to be from two  weeks  for  cases  involving
     small numbers of documents  to four to six  weeks for complex cases
     with large  numbers of  documents.

     During fiscal year 1984,  the  NCIC Evidence Audit Unit can assist
     Regions and Headquarters elements in establishment and  implemen-
     tation of internal document control  and  evidence  audit procedures
     as requested.
     To secure evidence  audit services,  the Regional Acir.irustr^'.cr or
     his/her designee sh:-ld  contact either of the two Deputy  Project

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                                                             10
Officers (Mr. Robert  Laidlaw or  Ms.  Geraldine  Hilden)  at PTS
234-4656 to describe  the  nature of the  case  and documents and
work out schedules  and logistics.   The  requestor  should then
confirm the request, in writing, to the DPO.

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IN.1

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IN.1-1

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    r>7 }   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY J/y. I -

                            WASH.NGTON. O.C. 20460
 TO:       Regional Administrators
           Surveillance and Analysis Division Directors
           Deforcement Division Directors

 FROM:      Assistant Administrator
            for Enforcement    _  ,  ___     —

 SUBJECT:  Conduct of  Inspections After the Barlow's Decision


 I.  Sucrnary

     This document is intended to provide guidance to the Regions in
 the conduct of inspections in light of the recent Supreme Court decision
 in Marshall v. Barlow' s, Inc.,  _ U.S.    , 98 S. Ct. 1816 (1978).
 The decision bears upon the need to obtain warrants or othef process for
 inspections pursuant  to EPA-administered Acts.

     In Barlow's, the Supreme Court held that an OSHA inspector was not
 entitled to enter the non-public portions of a work site without either
 (1) the owner's consent, or (2) a warrant.  The decision protects the
 owner  against any penalty or other punishment for insisting upon a warrant.

     In summary,  Barlow's should only have a limited effect on EPA
 enforcement inspections:

     o Inspections will generally continue as usual;

     o there an inspector is refused entry, EPA will seek a warrant through
        the U.S. Attorney;

     o Sanctions  will not be imposed upon owners of establishments who insist
        on  a warrant before allowing inspections of the non-public portions
        of  an establishment.

     The scope of the Barlow's decision is broad .  It affects all current
 inspection programs of EPA, including inspections conducted by State
personnel  and by  contractors.  The Agency's procedures for inspections,
particularly there entry is denied, were largely in accord with
 the provisions of Barlow's before the Suprene Court issued its ruling.
Nevertheless, a number of changes in Agency procedure are warranted.
Thus,  it is important that all personnel involved in the inspection
process be familiar with the procedural guidelines contained in this docu-
ment.

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                                    - 2 -
      Bus document focuses on the preparation for and conduct of inspec-
 tions, including (1) how to proceed when entry is denied, (2) aider what
 circumstances a warrant is necessary, and (3) what showing is neces-
 sary to obtain a warrant.

 II.  Conduct of Inspections

      The following material examines the procedural aspects of conducting
 inspections under EPA-administered Acts.  Inspections are considered in
 three stages:  (1)  preparation for inspection of premises, (2) entry onto
 premises, and (3) procedures to be followed where entry is refused.

    A.  Preparation  '•''

        Adequate preparation should include consideration of the following
 factors concerning  the general nature of warrants and the role of personnel
 conducting inspections.

        (1) Seeking  a Warrant Before Inspection

        The Barlow's decision recognized that, on occasion, the Agency nay
 wish to obtain a warrant to conduct an inspection even before there has
 been any refusal to allow entry.  Such a warrant nay be necessary when
 surprise is particularly crucial to the inspection,  or when a company's
 prior bad conduct and prior refusals make it likely that warrantless
 entry will be refused.   Pre- inspect ion warrants  may also be obtained where
 the  distance to a U.S.  Attorney or a magistrate  is considerable so that
 excessive travel tine would not be wasted if entry were denied.
 At present,  the seeking of  such a warrant prior  to an initial inspection
 should  be an exceptional circumstance,  and should be cleared through
 Headquarters.  If refusals  to allow entry without a warrant increase, such
 warrants  may be sought  more frequently. (For specific instructions on
 how  to  obtain a warrant, see Part O.)

        (2) Administrative Inspections v.  Criminal Investigations

        It is particularly important for both inspectors and  attorneys to
 be aware  of  the extent  to which evidence  sought  in a civil inspection can
 be used in a criminal matter, and to know when it is necessary to secure a
 criminal  rather than a  civil search warrant.  There  are three basic rules
 to nranber in this recard:  (1) If the purpose  of the inspection is to
 discover and correct, through civil procedures,  nonconpliance with regulatory
 requirements, an administrative inspection (civil) warrant may be used;
 (2)  if  the inspection is in fact intended,  in whole  or in part, to gather
 evidence  for a possible criminal prosecution, a  criminal search warrant
 must be obtained under  Pule 41 of the Federal Rules  of Criminal Procedure;
 and  (3) evidence obtained during a valid  civil inspection is generally
 admissible in criminal  proceedings.  These principles arise  from the recent
 Supreme Court cases of  Marshall v. Barlow's, Inc.,  supra;  Michigan v. Tyler,
	U.S.	,  98 S.Ct.  1942 (1978);  and U.S. v.  LaSalle National Bank,
	U.S.	,  57 L.  Ed. 2d  221 (1978).   It is not completely clear whether
 a car-bined  investigation for civil and  criminal  violations may be properly
 conducted under  a civil or  "administrative"  warrant, but we  believe that

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                                -  3 -
a civil warrant can properly be used unless the intention is clearly to
conduct a crjjninal investigation.

       (3) The Use of Contractors  to Conduct Inspections

       Several programs utilize private contractors to aid in the conduct
of inspections*  Since, for the purpose of inspections, these contractors
are agents of the Federal government, the restrictions of the Barlow's
decision also apply to them.  If contractors are to be conducting
inspections without the presence of actual EPA inspectors, these con-
tractors should be given training  in how to conduct themselves when
entry is refused.  With respect to obtaining or executing a warrant,
an EPA inspector should always participate in the process, even if
he was not at the -inspection where entry was refused.

       (4) Inspections Conducted by State Personnel

       The Barlow's holding applies to inspections conducted by State
personnel and to joint Federal/State inspections. Because some EPA
programs are largely implemented through the States, it is essential
that the Regions assure that State conducted inspections are conducted
in compliance with the Barlow's decision, and encourage the State inspec-
tors to consult with their legal advisors when there is a refusal to
allow entry for inspection purposes.  State personnel should be encouraged
to contact the EPA Regional Enforcement Office when any questions con-
cerning caroliance with Barlow's arise.

       With regard to specific procedures for States to follow, the
important points to remember are:   (1) The State should not seek for-
cible entry without a warrant or penalize an owner for insisting upon
a warrant, and (2) the State legal system should provide a mechanism for
issuance of civil administrative inspection warrants.  If a State is
enforcing an EPA program through a State statute, the warrant process
should be conducted through the State judicial system.  Where a State
inspector is acting as a contractor to the Aqency, any refusal to allow
entry should be handled as would a refusal to an Agency inspector as
described in section II.B.3.  Where a State inspector is acting as a
State employee with both Federal and State credentials, he should utilize
State procredures unless the Federal warrant procedures are more advantageous,
in which case, the warrant should be sought under the general procedures
described below.  The Regions should also assure that all States which
enforce EPA programs report any denials of entry to the appropriate
Headquarters Enforcement Attorney for the reasons discussed in section
II.B.4.

    B. Entry

       (1) Consensual Entry

       One of the assumptions underlying the Court's decision is that
most inspections will be consensual and that the administrative  inspec-
tion framework will thus not be severely disrupted.  Consequently,  inspec-

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                                -  4 -


 tions  will  normally continue  as before  the Barlow's decision was issued.
 This means  that the inspector will not  normally secure a warrant before
 undertaking an inspection  bjt, in  an atterst to gain admittance, will
 present his credentials  and issue  a notice of inspection where required.
 The establishment  owner  may cornplain about allowing an inspector to enter
 or otherwise express his displeasure with Q»A or the Federal government.
 However, as long as he allows the  inspector to enter, the entry is voluntary
 and consensual unless the  inspector is  expressly told to leave the premises.
 On the other hand,  if the  inspector has gained entry in a coercive manner
 (either in  a verbal or physical sense), the entry would not be consensual.

   Consent  must be  given by the owner of the premises or the person in
 charge of the premises at  the tijne of the inspection.  In the absence
 of the owner,  the  inspector should make a good faith effort to determine
 who is in charge of the  establishment and present his credentials to
 that person.   Consent is generally needed only to inspect the non-public
 portions of an establishment  - i.e., any evidence that an inspector obtains
 while  in an area open to the  public is  admissible in an enforcement
 proceeding.

       (2) Withdrawal of Consent

       The owner may withdraw his  consent to the inspection at any time.
The inspection is valid  to the extent to which it has progressed before
consent was withdcswn.   Thus, observations by the inspector, including
sarples and  photographs  obtained before consent was withdrawn, would be
 admissible  in  any subsequent  enforcement action.  Withdrawal of consent
 is tantamount  to a  refusal to allow entry and should be treated as
discussed in section II.B.3.  below, unless the inspection had progressed
 far enough  to  accomplish its  purposes.

       (3) When Entry is Refused

       Barlow's clearly  establishes that the owner does nave the right
 to ask for  a warrant under normal  circumstances.  Therefore, refusal
 to allow entry for  inspectional purposes will not lead to civil or criminal
penalties if the refusal is based  on the inspector's lack of a warrant
and one of  the exemptions  discussed in  Part C does not apply.  If the
owner were  to allow*the  inspector  to enter his establishment only in
 response to a threat of  enforcement liability, it is quite possible that
 any evidence obtained in such an inspection would be inadmissible.  An
 inspector may, however,  inform the owner who refuses entry that he intends
 to «eek a warrant  to compel the inspectr.on.  In any event, when entry is
1
 FIFRA inspections are arguably not  subject to this  aspect of Barlow's
See discussion, p. 5 and  6.

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                                  - 5 -
refused, the inspector should leave the premises immediately and telephone
the designated Regional, E-.forcerr.ent Attorney as soon as possible for
further instructions.  The Regional Biforeerent Attorney should contact
the U.S. Attorney's Office for the district in which the establishment
desired to be inspected is located and explain to the appropriate Assistant
United States Attorney the need for a warrant to conduct the particular
inspection.  The Regional Attorney should arrange for the United States
Attorney to meet with the inspector as soon as possible. The inspector
should bring a copy of the appropriate draft warrant and affidavits.
Samples are provided in the appendix to this document.

       (4) Headquarters Notification

       It is essential that the Regions keep Headquarters informed of
all refusals to allow entry.  The Regional Attorney should inform the
appropriate Headquarters Enforcement Attorney of any refusals to enter
and should send a copy of all papers filed to Headquarters.  It is
necessary for Headquarters to monitor refusals and Regional success in
obtaining warrants to evaluate the need for improved procedures and to
assess the impact of Barlow's on cur compliance monitoring  progrons.

    C.  Areas Where a Right of Warrantless Bitry Still Deists

       1.  Emergency Situations.

       In an emergency, where there is no time to get a warrant, a warrant-
less inspection is permissible.  In Camara v. Municipal Court, 387 U.S. 523
(1967), the Supreme Court states that "nothing we say today  is intended
to foreclose prcrpt inspections, even without a warrant, that the law has
traditionally upheld in emergency situations". Nothing stated in Barlow's
indicates any intention by the court to retreat from this position.  The
Regions will always have to exercise considerable judgment concerning
whether to secure a warrant when dealing with an emergency situation.
However, if entry is refused during an emergency, the Agency would need
the assistance of the U.S. Marshal to gain entry, and a warrant could
probably be obtained during the time necessary to secure that Marshal's
assistance.

     An emergency situation would include potential  imminent hazard
situations, as well as, situations where there is potential  for destruction
of evidence or where evidence of a'suspected violation nay disappear during
the tine that a warrant is being obtained.

       (2) FIFRA Inspections.

       There are some grounds for interpreting Barlow's as not being
applicable to FIFRA inspections.  The Barlow's restrictions  do not apply
to areas that have been subject to a long standing and pervasive history

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                              - 6 -
of govenmer.t regulation.  An Agency administrative law judge held recently
that even after the B&rlov*s decision, refusal to allow a warrantless
inspection of a FIF£A regulated establishment properly subjected the
owner to civil penalty.  K. Jonas t Co., Inc., I.F. & R Docket No. III-121C
(July 21, 1978).  For the present, however, FIFRA inspections should be
conducted under the same requirements applicable to other enforcement
programs.

       (3) "Open Fields" and "In Plain View* situations.

       Observation by-inspectors of things that are in plain view, U.e_.,
of things that a roedSer of the public could be in a position to observe) does
not require a warrant.  Thus, an inspector's observations from the public
area of a plant or even from certain private property not closed to
the public are adtdssible. Observations made even before presentation of
credentials while on private property which is not normally closed to the
public are admissible.

       D.  Securing a Warrant

       There are several general rules for securing warrants.  Three
documents have to be drafted:  (a) an application for a warrant, (b) an
accor.panying affidavit, and (c) the warrant itself.  Each document should be
captioned with the District Court of jurisdiction, the title of the action,
and the title of the particular document.

       The application for a warrant should generally identify the statutes
and regulations under which the Agency is seeking the warrant, and should
clearly identify the site or establishment desired to be inspected
(including, if possible, the owner and/or operator of the site).
The application can be a one or two page document if all of the factual
background for seeking the warrant is stated in the affidavit, and the
application so states.  The application should be signed by the U.S.
Attorney or by his Assistant U.S. Attorney.

       The affidavits in support of the warrant application are crucial
documents.  Each affidavit should consist of consecutively numbered para-
graphs, which describe all of the facts that support warrant issuance.  If
the warrant is sought in the absence of probable cause, it should recite
or incorporate the neutral admnistrative scheme which  is the basis for
inspecting the particular establishment.  Each affidavit should be signed
by someone with personal knowlege of all the facts stated.  In cases where
entry has been denied, this person would most likely be the inspector
who was denied entry.  Note that an affidavit is a sworn statement that
must either by notarized or personally sworn to before  the magistrate.

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                                  - 7 -
     The warrant is a direction to an appropriate official (an EPA
inspector, U.S. Marshal or other Federal officer) to enter a
specifically described location and perform specifically described
inspection functions.  Since the inspection is limited by the terms of
the warrant/ it is important to specify to the broadest extent possible
the areas that are intended to be inspected, any records to be inspec-
ted, any samples to be taken, any articles to be seized, etc.  While
a broad warrant may be permissible in civil administrative inspections,
a vague or overly broad warrant will probably not be signed by the
magistrate and may prove susceptible to constitutional challenge
The draft warrant should be ready for the magistrate's signature at the
time of submission via a motion to quash and suppress evidence in
Federal District court.  Once the magistrate signs the draft warrant, it
is an enforceable document.  Either following the magistrate's signature
or on a separate page, the draft warrant should contain a "return of
serv-ice" or "certificate of service".  This portion of the warrant should
indicate upon whom the warrant was personally served and should be signed
and dated by the inspector.  As they are developed, more specific warrant-
issuance documents will be drafted and submitted to the Regions.

       E.  Standards or Bases for the Issuance of Administrative Warrants.

       The Barlow's decision establishes three standards or bases for the
issuance of administrative warrants.  Accordingly, warrants may be obtained
upon a showing:  1) of traditional criminal probable cause, 2) of civil
probable cause, or 3) that the establishment was selected for  inspection
pursuant to a neutral administrative inspection scheme.

       1.  Civil specific probable cause warrant.

       Where there is some specific probable cause for issuance of a warrant,
such as an employee complaint or competitor's tip, the inspector should be
prepared to describe to the U.S. Attorney in detail the basis  for this
probable cause.

       The basis for probable cause will be stated in the affidavit in
support of the warrant.  This warrant should be used when the  suspected
violation is one that would result in a civil penalty or other civil
action.

       2.  Civil probable cause based on a neutral administrative
           inspection scheme"!

       Where there is no specific reason to think that a violation has been
committed, a warrant may still be issued if the Agency can show that the
establishment is being inspected pursuant to a neutral administrative
scheme.  As the Supreme Court stated in Barlow's:

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                               -  8 -
      "Probable cause  in  the criminal law sense is not required. '
      For purposes of  an  administrative search, such as this, probable
      cause  justifying the  issuance of a warrant may be based not only
      on  specific evidence  of an existing violation, but also on a
      showing  that "reasonable legislative or administrative standards
      for conducting an ... inspection are satisfied with respect
      to  a particular  (establishment)".  A warrant showing that a speci-
      fic business has been chosen for an OSHA search on the basis of a
      general  administrative plan for the enforcement of the act derived
      fron neutral sources  such as, for example, dispersion of employees
      in  various type  of  industries across a given area, and the desired
      frequency of searches in any of the lesser divisions of the area,
      would  protect an employers Fourth Amendment rights."

Every program enforced by  the Agency has such a scheme by which it prioritizes
and schedules its inspections.  For example, a scheme under which every penr.it
holder in a given program  is inspected on an annual basis is a satisfactory
neutral  administrative scheme.  Also, a scheme in which one out of every three
known PCS transformer repair shops is inspected on an annual basis is satis-
factory, as long as,  neutral criteria such as random selection are used to
select the  individual  establishment to be inspected.  Headquarters will prepare
and transmit  to the Regions the particular neutral administrative scheme under
which each  program's  inspections are to be conducted.  Inspections not based
on specific probable  cause must be based on neutral administrative schemes fr
a warrant to  be issued.  Examples of two neutral administrative schemes are
provided in the appendix.  (Attachments II and III)

     The Assistant U.S.  Attorney will request the inspector to prepare and
sign an affidavit that states the facts as he knows them.  The statement
should include the sequence of events culminating in the refusal to allow
entry and a recitation of  either the specific probable cause or the
neutral administrative scheme which led to the particular establishment's
selection for inspection.  The Assistant U.S. Attorney will then present
a request for an inspection warrant, a suggested warrant, and the inspector's
affidavit to  a magistrate  or Federal district court judge.2

       3.   Criminal Warrants.

       Where  the purpose of the inspection is to gather evidence for a
criminal prosecution,  the  inspector'and the Regional Attorney should request
that  the U.S. Attorney seek a criminal warrant under Rule 41 of the Federal
Rules of Criminal Procedure.  This requires a specific showing of probable
cause to believe that evidence of a crime will be discovered.  Agency policy
on the seeking of criminal warrants has not been affected by Barlow's.  The
2
  The Barlow's decision  states  that imposing  the warrant requirement
on OSKA would not invalidate  warrantless search provisions in other
regulatory statutes since many  such statutes  already "envision resort

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                                    -9-
cistinction between administrative inspections and criminal warrant
situations is discussed in Section II.A.2.

      F. Inspecting with a Warrant

       Once the warrant has been issued by the magistrate or judge, the
inspector may proceed to the establishment to connence or continue the
inspection.  Where there is a high probability that entry will be refused
even with a warrant or where there are threats of violence, the inspector
should be accompanied by a U.S. Marshal when he goes to serve the warrant
on the recalcitrant owner.  The inspector should never hijnself attempt
to make any forceful entry of the establishment.  If the owner refuses
entry to an inspector holding a warrant but not accompanied by a U.S.
Marshal, the inspector ..should leave the establishment and inform the
Assistant U.S. Attorney and the designated Regional Attorney.  They will
take appropriate action such as seeking a citation for contempt.  Where
the inspector is accompanied by a U.S. Marshal, the Marshal is principally
charged with executing the warrant.  Thus, if a refusal or threat to
refuse occurs, the inspector should abide by the U.S. Marshal's decision
whether it is to leave, to seek forcible entry, or otherwise.

       The inspector should conduct the inspection strictly in accordance
with the warrant.  If sar.pling is authorized, the inspector must be sure
to carefully follow all procedures, including the presentation of receipts
for all ssr.ples taken.  If records or other property are authorized to be
taken, the inspector must receipt the property taken and maintain an
inventory of anything taken fron the premises.  This inventory will be
examined by the magistrate to assure that the warrant's authority has
not been exceeded.
2 continued from page 8.

to Federal court enforcement when entry  is refused".  There is  thus
some question as to whether the existence of a non-warrant Federal
court enforcement mechanism in a statute requires  the use of  that
mechanism rather than warrant issuance.  We believe that the  Barlow's
decision gives the agency the choice of  whether  to proceed through warrant
issuance or through an application  for an injunction, since the decision
is largely based on the fact that a warrant procedure imposes virtually
no burden on the 'inspecting agency. In  addition,  an agency could attempt
to secure a warrant prior to inspection  on an ex parte basis, something
not available under normal injunction proceedings. Several of  the acts
enforced by EPA have provisions allowing the Administrator to seek
injunctive relief to assure compliance with the  various parts of a
particular statute.  There may be instances where  it would be more appro-
priate to seek injunctive relief to gain entry to  a facility  than to
attempt to secure a warrant for inspection, although at this  point we
cannot think of any.  However, since the warrant process will be far
more expeditious than the seeking of an  injunction, any decision to
seek such an injunction for inspection purposes  should be cleared through
appropriate Headquarters staff.

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                               - 10 -
        G.  Returning the Warrant.

        After the inspection has been completed, the warrant must be returned
to the magistrate.  Whoever executes the warrant, (i.e., whoever perfonrs
the inspection), must sign the return of service form indicating to whom
the warrant was served and the date of service.  Be should then return
the executed warrant to the U.S. Attorney who will formally.return it to
the issuing magistrate or judge.  If anything has been physically taken
from the premises, such as records or samples, an inventory of such items
must be submitted to the court, and the inspector must be present to certify
that the inventory is accurate and complete.
                     ' "•»'
III.   Conclusion

       Except for requiring the Agency to formalize its neutral inspection
schemes, and for generally ending the Agency's authority for initiating
civil and/or criminal actions for refusal to allow warrantless inspections,
Barlow's should not interfere with EPA enforcement inspections.

       Where there is doubt as to how to proceed in any entry case,
do not hesitate to call the respective Headquarters program contact for
assistance.
                              Marvin B.  Turning

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                              APPDBIX
The Appendix contains three attachments.

     Attachment I is a warrant application, affidavit and warrant to
conduct an inspection, where the Agency has specific probable cause to
believe that a civil violation of an EPA regulation or Act has occured.
In particular/ care should be taten in spelling out the specific facts
that give rise to probable cause,  tote also, that the scope of the
warrant is carefully articulated.

     Attachment II is a warrant application, affidavit and warrant to
conduct an inspection in which the establishment to be inspected has
been selected under a neutral administrative inspection scheme.  Note
the extraordinary detail of the administrative scheme describe in
paragraphs 8-20 of the affidavit.  Such detail should not be necessary
for most EPA neutral administrative inspection schemes.  Note also
the executed inventory and return of service forms attached to
.Attachment II.             '                                •

     Attachment III contains a neutral administrative scheme for
CFC inspections.  In implementing such a scheme, the Regions must still
utilize neutral criteria in selecting the  individual establishment to
be inspected.

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                UNITED STATES DISTRICT COURT
                ML5SLI UISTAICT OF LOUISIANA
IN TJIE KATTIR OF              :
GLEAN LSu'CO AIR ATO WATER,     :    MO'. 7/-V1 *1
CORPORATION. D/S/A CLAW-.
ROLLINS E.*:vzKc::::i:::7AL SMRvicss:    APPLICATION FOR k'A?.RA:rr TO
OF LOUISIANA INCORPORATED:    :    ENTER. INSPECT. PHOTOGRAPH.
E::viKc::::i-:;TAL PI-RI?ICATICN    :    SAMPLE. COLLECT I::-O?J^T:O:;,
ADVANCE:^- INCORPORATED:     8    INSPECT AND COPY ucaics
E?A, INC.; IN I3ERVILLE       ,
PARISH, LOUIS UNA             i

          70 THE UNITED STATES MAGISTRATE, by the United
States of Ascriea, Environmental Protection Agency, through
Junes Stanley Ltoelle, Ajfi*t*nc Oaittd Seacts Attorney, for
the Kiddle DiJtrice of Louisiana, hereby applies for a
warrant pursuant to section 308 of the Federal Vater Pollution
Control Act, 33 U.S.C. 1318, and the Resource Conservation
and Recovery Act of 1976, 42 O.S.C. 6927, for the purpose of
conducting an inspection as follows:
          To eater to, upon, er through the preoises of a
vaste disposal operation known by various names including
the CLAW facility, which consists of three sites, to wit:
              9
an injection well site, a field office and storage tanks.
and waste pits and landfill site located in Zbcrville Parish.
    •
        .•
Louisiana in or near the Bayou Sorrells coasunity.  The
facility can be reached for disposal purposes by truck or
barge.  The ownership and operation of the CLAW facility
vaste disposal operation has been known, by several differe