GENERAL ENFORCEMENT POLICY
COMPENDIUM *
Volume II
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>^£±\ 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following policies are hereby superseded: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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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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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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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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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.
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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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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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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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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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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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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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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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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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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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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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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
-------
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
-------
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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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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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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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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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
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-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
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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
-------
-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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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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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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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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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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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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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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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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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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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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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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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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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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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.
-------
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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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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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
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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.
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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.
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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 «
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-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.
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OR.1-1
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* " 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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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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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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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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motions to intervene are pending, those, as well as any other
outstanding motions, should be resolved by the decree.
EXAMPLE
The State of Ohio has moved to intervene as
Plaintiff. The Commonwealth of Pennsylvania
has also moved to intervene as Plaintiff to
protect its interest insofar as resolution of
the allegations of the complaint affect water
quality in the Mahoning River at the Ohio-
Pennsylvania State line. The motions to
intervene are hereby granted.
B. Procedural History
The decree should include provisions regarding proce-
dural history if the defendant in the case at bar has been
involved in prior relevant enforcement proceedings. It is helpful*
in these cases, to specify the relationship between this decree
•
and previous decrees and orders in effect with regard to this
defendant. The decree you are drafting may abrogate or add to
the provisions of a previous decree or order. If so, you
should detail these facts in the decree. In some instances,
the previous decree or order may have resolved violations at
the same facility which are so similar to those presently being
addressed that the existence of two decrees would be confusing.
A new decree which incorporates those provisions of the prior
decree still in effect may clarify the obligations of the
defendant. Finally, if the violation of an administrative
order preceded this judicial action, you should note that
fact in this section of the decree.
EXAMPLES
1. Plaintiff and Defendant entered into a-
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Consent Decree to resolve a prior case,
Civil Action No. , and the
Defendant has fully and satisfactorily
complied with that prior Decree.
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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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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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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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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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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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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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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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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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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and/or the court. When this is the case, it is appropriate
to include a provision setting out to whom such notices should
be given.
EXAMPLE
Whenever, under the terms of this decree,
notice is required to be given by one party to
another party and/or the court, such notice
shall be directed to the individuals specified
below at the addresses given, unless those
individuals or their successors give notice in
writing to the other parties that another
individual has been designated to receive
such communications.
(appropriate names and addresses)
2. Penalties
a. Generally
Often, the defendant will be liable for a civil penalty for
• •
its violation of the statute. Some decrees may contain only
penalty provisions in situations in which some sanctions are
appropriate to respond to past violations and to deter future
misconduct, yet compliance provisions are unnecessary because
the defendant has achieved compliance before the execution
of the decree. The decree should state that the payment is
a penalty so the defendant does not obtain a tax advantage
from its payment.
EXAMPLE
Defendant shall pay a civil penalty in the
amount of as a result of the defen-
dant's violation of with regard to
facilities which are the subject of this decree.
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The decree should also state terms for payment of any penalty.
Normally/ payment should be in a lump sum within a short time
from the entry of the decree. Installment payments may be allowed
in the following circumstances:
- if the defendant can demonstrate an inability both to pay the
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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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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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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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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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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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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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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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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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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. 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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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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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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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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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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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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;
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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.
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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
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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
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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.
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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
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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
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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
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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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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.
-------
OR.1-2
-------
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.
-------
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
-------
OR.2
-------
OR.2-1
-------
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 ::•.-;.-..: • :
-------
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.
-------
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
-------
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
-------
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
-------
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
-------
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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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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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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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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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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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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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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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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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
-------
(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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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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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.
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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
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
-------
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).
-------
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.
-------
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".
-------
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.
-------
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
-------
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
-------
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,
-------
-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
-------
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
-------
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!
-------
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.
-------
(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*
-------
(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
-------
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).
-------
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.
-------
-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.
-------
-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
-------
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.
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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
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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
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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
Vl-6
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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
VH2
-------
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.
VM3
-------
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.
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FEDERAL
FACILITY
FEDERAL
FACILITY
OR
PRIVATE
PARTY
PRIVATE
PARTY
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CHAPTER VII
ROLE OF THE STATES IN
RESPONDING TO FEDERAL
FACILITIES VIOLATIONS
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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.
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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
VH-2
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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.
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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.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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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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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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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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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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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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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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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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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.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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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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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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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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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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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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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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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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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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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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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.
-------
-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.
-------
-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
-------
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
-------
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
-------
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
-------
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).
-------
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."
-------
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.
-------
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.
-------
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.
-------
-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
-------
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,
-------
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.
-------
- 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
-------
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
-------
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.
-------
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".
-------
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-.. ••- '
-------
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
-------
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
-------
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
-------
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
-------
Appendix ~
PFPFRRAL INDICATOR TABLE
REFERRAL
INDICATOR DESCRIPTION
RH Region to Headquarters
RD Region to DOJ
RU Region co US Attorney
HD Headquarters to DOJ
-------
TK.1-7
-------
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
-------
CM.1
-------
CM.1-1
-------
/ 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
-------
-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
-------
-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.
-------
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)
-------
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.
-------
CM.1-2
-------
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
-------
—- 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
-------
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
-------
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,
-------
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
-------
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
-------
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:
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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
-------
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
-------
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
-------
! ~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
-------
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.
-------
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
-------
»~ •^—!•-!.—. '—^—*—*— ——^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
-------
IN.1-1
-------
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 different
names, to wit: Clean Land Air Vatar Corporation (CLAW);
CPAt Incorporated; Cnvironoental Purification Advancement;
Environmental Purification Abatement (EPA, Inc.) and Rollins
Enrlronaental Services of Louisiana. .A company letterhead
ttsiag the names of CLAW and EPA, lac. lists an address of
touts 2, Box 380B, Plaqueminc, Louisiana 70764.' It is
reported la the newspapers and elsewhere, that on July 28.
1978 - three days after the death of the truck driver on the
CLAW facility • that the Injection well on the CLAW facility
was sold to the Rollins Environmental Services of Louisiana.
Unsubstantiated reports say that CLAW no longer has any
-------
of EPA. Inc. and the injection veil under Che ownership of
Xfillins. CLAW and EPA, Zae. are reported to be different
company and/or corporate cases for the-fane people. Despite
these possible ownership changes, the CLAW facility apparently
continues to be operated as a single unit. Further, it is
reported that CLAW or Bellini is wider .a federal court order
to honor its contract with a client to accept waste. For
purposes of this application, affidavit and warrant, the
three sites and all operations vill be referred to as CLAW.
The field office and storage .tanks arc in or ea
the edge of Bayou Sorrells; the injection veil cite is about
2.6 miles northwest of Bayou Sorrells on the road; the wasta
•
open pits-landfills are located approximately 7.7 miles
Borzhwesc of Bayou Sorrels en the levee road. The address
of the CLAW facility is Clean Land Air Water Corporation EPA
• Incorporated, Route 2. Box 380 B. Plaquemine, Louisiana.
These CLAW facilities are known to EPA inspectors and well
fcaovn to local people. •
• The CLAW facility is an establishment subject to
the requirements and prohibitions of the Federal Water Pol-
•
lution Control Act. including buc not liaited to sections
301, 308 and 311. and sections 3007 and 7003 of the Resource
•
'Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et
««£•) ' .
On Friday. August 4. 1978, Edward McHam. an
employee of the U.S. Environment Protection Agency, requested
permission to enter and inspect the said premises. Despite
•oca request, employees of said facility refused to grant
access to said premises to Mr. 'McHaai. a duly authorized
inspector of the Environmental Protection Agency. •
The determination to inspect said premises was
based en the following:
•
The sheriff's office of Ibcrville Parish requested
EPA's assistance and reported a death at said premises.
-2-
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Local unrest and fear ef the facility was reported ce Che
Inforcemer.s Division of Region VI, Dallas, Texas en Tuesday.
August 1. 1979 and EPA was requested to inspect the facility
which is a disposal sice for chemical wastes and numerous
oil wastes ef a hazardous a&d toxic nature.
Much local unrest, and agitation and con?laints
have been reported en television and in newspapers concerning
Che operation ef the CLAW facility as well as the untiaely
death ef a 19 year eld truck driver at aaid facility while
he was discharging waste into an open pit at the facility.
The death was possibly caused by his inhalation ef toxic
fuses caused by a reaction ef sixing incocpatible toxic
wastes in the open pit. Allegedly two eye witnesses to the
death ef the driver reported the presence ef choking fuses
in the area when they opened the deors to their truck to
•••ist the driver who died. They also reported that hia
truck was parked at the edge of the open pit truck rasp.
with d^ors open at the tiu ef his dea'th. Subsequent
laboratory tests ef waste taken from the pits have shown
vaste materials present in the pit, which, when mixed with
the speat caustic being discharged froa the driver's truck
could have caused the death. Final autopsy reports are
atill pending. It ia reported and alleged that CLAW facility
officials directed the driver to take and discharge his
wastes at the eruck raap in the open pit, rather than in the
injection well. Discharging toxic wests into an open pit,
«t the edge of a pit, is not a safe, desirable, or acceptable
•practice since toxic chemical reactions are very probable
and can result in the death ef anyone nearby.
Zdvard.KcHaa nude a preliminary inspection
in which he obtained cvo pit samples and observed evidence
of oil, hazardous wastes, waste spillage and a "sloppy"
operation which appears to be dangerous to the environment
•3-
-------
as veil as hazardous to the health and welfare of. citizens.
He further observed high water markings en Che adjacent
trees as the pi: sice and a lack of levees between the sites
• -w
and the Crand River and ether waterways. In addition, there
Bay be hazardous wastes and conditions which cay pose a
substantial present, or potential hazard to human health
or the environment when Improperly treated, stored, trans-
ported, or disposed of, or otherwise managed.
•The inspection will be ceosenced in daytime
vithin regular business hours and will begin as seen as
practicable after issuance of this warrant and will be
completed with reasonable promptness.
The inspection will be conducted by the
United States Environmental Protection Agency (EPA) inspec-
tors, who will be accompanied by the United States Marshal
to ensure entry so that the EPA inspectors may perform an
Inspection of the premises, inspect and copy records, take
photographs, gather information and evidence and collect
•aspics in accord with 33 DSC 1318 and *2 DSC 6927.
, A return will be cade to the .Court upon completion
of the inspection.
THEREFORE. it is respectfully requested that a
warrant to enter and inspect the CLAW facility be issued.
. JLespectfully submitted,
DONALD L.
UNITED STATES ATTORNEY
t.
istant U.S. Attorney
-------
S7ATT OF LOUISIANA
PAKZ5H OF EAST BATCH ROUC2
Z, Edward McHan, being duly svcrn, hereby depose
asd say:
1. Z aa a duly authorized employee of Che United
States Environmental Protection Agency, and ay title ij
Cheaical Engineer, Surveillance and Analysis Division,
Region VI, which include* the State of Louisiana. Za 07
capacity. Z as responsible for inspecting facilities subject
CO various federal environaental statutes as directed by ay
supervisors.
2. On Tuesday, August 1, 1978 from about 7:45
p.m. eo 8:45 p.m., I made a preliminary inspection of Che
CLAW facility and cook evo samples at the open pica. On
Wednesday, August 2, 1978, Z cook a few photographs of the
facilities from around 3:30 p.a. until 5:30 p.a. On Thursday.
August 3, 1978 accompanied by another EPA eaployee, I visited
•
Che facility and area froa about 11:30 a.a. co 2:00 p.a. and
also cook a few additional photographs. These brief visits
•
to the site have only involved facility eaployees a few
minutes each tis* in order to obtain passes froa Che field
office and to open gates at various guard houses.
3. On Friday. August 4, 1978, a local deputy
aheriff, seate and local officials and Z were refused adsit-
•
cance to the CLAW facility. Also, CLAW officials were no
•
longer at the field house or available elsewhere eo issue
passes CO enter. My previous ssapling and inspection was
sec sufficient for laboratory purposes' and needs co be
resumed.
4. Information Z have gathered in Che local
cosaunity. in newspapers, on television, from laboratory
-------
tests of the saeples, fres the Zbcrville Sheriff'• Office.
and *c the CLAW facility strongly suggest and support the
need to enter and inspect the facilities for possible Section
301. 311 and other violations of the Federal Vater Pollution
Control Act. Further, it is possible that there are hasardous
vastes and conditions on eh* premises as defined ia Section
100A(5) of Che Resource Conservation and Recovery Act of 1976,
(42 USC 6903) (5) .which constitute an iaainent hazard under
•ection 7003 of the Resource Conservation and Recovery Act
of 1976 (42 USC 6973). These observations art:
•
•;•' A. Obvious spillage of waste material en
the grounds of ehe CAW facility subject to entering waterway's.
b. Contaminated landfills with obviously
exposed and daaaged barrels with their contents en?tied or
nearly empty.
•
e. Drainage from landfills into a "fishing"
lake and other adjacent areas leading to various waterways.
d. Open pits containing oil wastes and
hazardous, toxic chezical wastes with the appearance of
overflow wastes on the adjacent grounds as well as high
•
water narks on trees next to eh* open pits equal Co er
higher than the pits.
*. The lack of levees between the facility
grounds and drainage areas eo the Grand River, "fishing
lake", bayous and barrow ditches.
f. Copies of a fev facility log records and
ether docuaents which were previously copied by the local
Sheriff's office. These records indicate eh* receipt end con-
•
tent of oil and hazardous cheaical wastes accepted at the
facility.
1. —Poor maintenance and sloppy "housekeeping
practices at the facility which leads a reasonable person to
recognize the likelihood of these prohibited pollutants
•2-
ft
-------
ONITTS STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
IK TRS MATTES OF
CLEAj; LA.VD AIR AND WATER,
CORPORATION, d/b/a &AW;
rrc., zn Ai.
WARRANT or ENTRY-, XHSPECTIC::
AND MONITORING PURSUANT TO
33 U.S.C.S131B and 42 U.S.C.J6927
THE DJJITED STATTS Or X'CRICA. UNITED STATES
PROTECTION ACE.VOf, THROUGH ITS DUT-V DESIGNATED REPRESENTATIVE
OR R£?R£SZ::TA7IVES, THE UXI7ED STATES MARSKAL OR ANY OTHER
. ZX2ERAI, orricxR
Aa application having been aad« by the Onitad States of
Aaerica, Onitad States ravironn«nt*I Protaetioa Agency, for a
warrant of antry, inspection and aenitering pursuant to 33 O.S.C.S131I
«
«ad 42 O.S.C.SC927, as part of an Inspection program designed to
assure compliance with the federal Water 'Pollution Control Act
(coneenly referred to as the Clean Water Act), 33 O.S.C.S12S1, et
•
sec,., and the Resource and Recovery Act of 1976 (42 O.S.C.S6901, et
seq.),.and an Affidavit having been made before me by Edward McBaa,
* duly authorized employee of the United States Environmental
Protection Agency, that he'has reason to believe that en the premises
-hereinafter described there exist a danger to the public's health,
welfare and safety and to the property, rivers and environment of
the United States, and that in order to determine whether the
Federal Water Pollution Control Act (commonly referred to as the
Clean Water Act), 33 O.S.C.512S1, et seq., and the Resource and
lacovery Act of If7f (42 C.S.C.S6901, et seq.), and the rules,
mediations sad orders issued pursuant to the Acts have been or
•
are being violated, an entry on, and inspection and monitoring
. *
of the said described property is required and necessary;
-------
And, the Court being satisfied that there has been *
sufficient shewing that reasonable legislative or administrative
•
standards for conducting an inspection and investigation have been
satisfied with respect to the said described property and -that
prctttle cause exist to issue a warrant for the •aery, Inspection,
Investigation and monitoring of the said described premises:
z? is KE3Z2Y CJCEXEO AKO COM-JANDEO that the caitod states
of America, Onited States Eavironmaatal Protection Agency, through
•
its duly designated representative or representatives, the Onited
States Marshal, or any ether federal officer are hereby entitled te
and shall be authorized and permitted to have entry upon the
following described property which is located in the Kiddle District
of .Louisiana:
Those premises known as the Claw Corporation
waste disposal facility is Zberville Parish,
Louisiana, also known as EPA, Inc., Clear Land
Air Water Corporation. Environmental Purification •
Advancement, Environmental Purification Abetenent
and possibly as the jtcllins Environmental Services
of Louisiana, or which are owned or operated by
any ether person or company,* corporation or part-
• aership, which premises and property are store
• particularly ar.d further described as fellows:
•From the intersection of La. Highway 75 and
^a. Highway 3065, proceed South for approximately
7 miles; turn right and travel across the Sayor-
Sorrel-Pontoon Bridge, a distance of approximately
0.2 miles; turn right, proceed northwest on Route
2, the Lower Levee Read, for approximately 1.6
•iles at which point the pavement ends; at this
point turn right, travel approximately 0.1 miles
te the entrance of the injection well, which is
believed to be owned by Rollins Environmental
Services of Louisiana, Incorporated, all as is
shown en the attached photos identified as
Coverssent Exhibits 1 and 2.'
•
•From the Rollins Environmental Services of
Louisiana, Incorporated office, proceed South en
the shall/gravel road for approximately 1.4 miles
until the road deadends. This is the location of
the field office of Clean Land Air and Water
(CLAW), and storage tanks which are believed to be
owned by Rollins Environmental Services of Louisiana
Incorporated, ell as is shown en the attached photos
Identified as Government Exhibits 3, 4, and 5.
•2-
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•rrom the field office of CJW, return to the
site of the intersection At the paved lower l«v*e
road and the road leading to the dee? well injecticn
site (Rollins £.ivirar..r:sr.:£l). Proceed northwest
en the unpavcd shell/travel low«r lev«e road
approximately 6.1 miles to the entrance road and
bridqe 1 eiiing to the gate guard house ar.d gate
of the EPA, Inc. waste disposal pits. This cast
•ntranee road is 7.7 miles northwest along the
lower levee road from the intersection of tho lower
levee road and Bayou Scrrel Pontoon Bridge toad.
27 ZS rURTKTR OJCESZD that the entry. inspection,
investigation and monitoring authorized herein shall be conducted
•
during regular working hours or at other reasonable rises* within
reasonable linits and la a reasonable manner from C:00 a.a. to
10:00 p.m. ..,';"
27 IS FORTES* ORCERCT that the warrant issued herein shall
be for the purpose of conducting an entry. Inspection, investigation
and monitoring pursuant to 33 O.S.C.J1318 and 42 O.S.C.S&927
consisting of the following:
(1) entry to, npcn or through the above described
premises, including all buildings, structures,
•quipnent, aac.lines, devices, materials ar.d
sites to inspect, sample, photograph, monitor
or investigate the said prenises;
(2) access to, seizure of and copying of all records
•• pertaining to or related to the operation of
the facility, equipment, waste materials
which are accepted and stored en the premises
and records which are required to be maintained
under 33 O.S.C.51318(a)(A), and 42 O.S.C.S6901,
•t sec.., including any rules and regulations
and orders promulgated thereto;
(3) inspection, including photographing, of any
monitoring equipment or methods required by
33 O.S.C.$1318(aj(A), and 42 O.S.C.S6927;
(4) inspection, including photographing,of any
equipment, processes or methods used in saapllng,
monitoring or in waste characterization;
(5) inspection, including photographing, of any
•quipsent or methods used to dispose of or store
waste substances;
(f) sample and seize any pollutants, effluents.
runoff, soil, or ether materials or substances
which may reasonably be expected to pollute
the waters of the United States under various
conditions or threaten the public health, safety
or welfare of the people of the United States;
-3-
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(7} seize, inspect, sar.plc, and pheteraph any
evidence wnich constitutes or relates to or
is p»rt of a violation o£ the reccral Water
Pollution Control Act (nsr.c.-.ly referred to
•s the Clean Water Act, 33 U.S.C.51251, ct
sec;., ar.d t.".c Resource and Recovery Act ci 1976
(42 U.S.C.S6S01, at seq.J;
(» taJce such photographs of the above authorized
procedures as nay be required or accessary.
XT XS FURTHER ORDERED that a copy of this warrant shall
fe* left at the premises at tha- ti«t of the inspection.
27 XS FURTHER ORDERED that if any property is seized,
»
the officer conducting the search and seizure shall leave a receipt
for the property taJcen and prepare a written inventory of the property
•edited and return' this warrant with the written inventory before
« within 10 days froa the date of this warrant.
XT 25 FURTHER OfD£ft£3 that the warrant authorized herein
•
•hall be valid for a period of 10 days frea the date of this warrant.
XT XS ru^THTR ORC£R£D that the Daited States Marshal Is
hereby authorized and directed to assist the representatives of the
United States Environmental Protection Agency in such suuuer as
•ay be reasonably necessary and required to execute this warrant
and the provisions contained herein, including but not lisated to
gaining entry upon the preaises, the inspection and aonitoring
•
thereof, the seizure and sanpling of materials, docuaents or equipment,
«nd the photographing of the premises, and the materials or equipment
thereon.
BATED this /e> day Of &JULt^AJ- 1578.
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APPLICATION FOR
ADMINISTRATIVE KAAPJtfTS
IH TEE UNITES STATES DISTRICT COORT
FOR THE EASTERN DISTRICT Of MICHIGAN
SOUTHERN DIVISION
XK TEE MATTER OF:
GENERAL MOTORS CORPORATION
GENERAL MOTORS ASSEMBLY DIVISION
KILLCX RUN AIRPORT
TPSILAKTI, MICHIGAN 48197
AKD
VEHICLE EMISSION LABORATORY
GENERAL MOTORS PROVING GROUND
HILFORD, MICHIGAN 48042 )
ROW COMES the Administrator for the Environmental
Protection Agency (EPA)* by and through the Doited State*
•
Attorney, and applies for administrative warrants to
•nter, to observe a Selective Enforcement Audit (SEA) test
en a configuration of motor vehicles manufactured by the
General Motors Corporation (CM) as specified in a SEA test
order issued on July 28, 1978, by the Assistant Administrator
for Enforcement of EPA, and to inspect CM'i records, files,
papers, processes, controls, and facilities which are
.involved in and associated with the manufacture and testing
of said configuration pursuant to said test order at the*
premises of the CM Willow Run vehicle assembly plant, Tpsilanti,',
Michigan, and the CM vehicle emission laboratory at Milford,
Michigan, in accordance with Sections 206(b) and (c), 208(a)
and 301(a)'of the Clean Air Act, 42 O.S.C. $7525(b) and (c),
7S42(a) and 7601(a), and regulations promulgated thereunder.
In support of this application, the Administrator respectfully
•
submits an affidavit and proposed warrants.
Jaaes K. Robinson
Onited States Attorney
Assistant United States Attorney
-------
i:? T;:E UNITED s?A?rs DISTRICT COURT
res THE EASTS:::: DISTRICT or Kic:iic/.rt
sc:'TK£r.:: DIVISION
IN THE .".A77ER OF:
)
cni'K.v.L .':o?cr.s coR?or.A7ics ) Ao:'.:s'isT.e-*-.T:vE
e^cs-ui K&tsas A£S£«£iy PIV:SIO:J 'j K-TRy A:;C u
V.I IlC:; r.L'N Al;?fOW ) TdZ CiCAN AI3 ACT
VPSIULTTJ, nicarcA:; 48197 )
TO: MATTHEW A. LW, Acting Chitf, Manufacturers Projrina
Branch, Mobile Souret Cnfercesant Division, Offica of
Enforcsaer.t, United States Cnvizcn=*nt*l Protection Agency
(EPA), »r.d any other duly designated enforcement officers or
employees of the CPA:
.Application having been oede, and Matthew Low having shown
probable ecuse for the issuance of an administrative warrant
for enr.ry; observation of a Selective Enforcement Audit
(S£A) test on the configuration of eotor vehicles manufactured
by General Motors Corporation (CM) of engine finily 84082
and engine code 2, with 4000-pound inertia weight, A-3
transaissicn and 2.56 rear axle' ratio, as specified in a SEA
tast order issued on July 28, 1978, by the Assistant Administrator
for Enforceaent of CPA; and inspection of CM'* records,
files, papers, processes, controls and facilities which are
involved in and associated with the manufacture and testing
of said configuration pursuant to said test order at the
premises of the CM Mil low Run vehicle asseebly plant, Ypsil&nti,
Michigan;
NSEAEFOriE, pursuant to the Clean Air Act as aaended, 42 U.S.C.
57401 «t «e_«? . , and the regulations thereunder, you and any duly
designated enforcement officers and eoployeec of the Environmental
Protection Agency are hereby authorized to enter the above-described
premises at reasonable times during normal operating hours for the
-------
purpose of csnductir.g »n ac.-ainistrative inspection pursuant
to Sections 206(b) and (c), 20EU) and 301(a) of the Clean
Air Act, 42 U.S.C. fS7325(b) *nd (c), 7542(e) ar.d 7601, and
40 C.F.R. 5S5.601 e_t seq. Vou and any duly designated
enforcement officers and employees of E?A are authorised to
observe activities conducted by CM pursuant to tie SEA test
order issued on July 28, 1978, concerning the vehicle
configuration specified in said test order to detemine
whether CM is coaplying with 40 C.F.R Part 86 and with the
test order. The activities that you and the designated
persons are authorized to observe include the following:
- \t*
vehicle and engine manufacture, assembly, and storage
procedures; sample test vehicle selection procedures;
and related activities. Tou and any designated enforcement
officers and employees are authorized to inspect at reasonable
tines during normal operating hours the records, files,
papers, processes, controls and facilities which are
involved in and associated with the above activities and
are maintained, used and generated by CM at that location.
You and any duly designated enforcement officers and employees
•
are authorized -to copy documents and photograph components,
test vehicles and facilities.
Th*e duration of this inspection shall be of such reasonable
length as to enable you and the authorized enforcement officers
and employees of EPA satisfactorily to complete such inspection
according to 40 C.F.R. 586.601 et seer.
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-3-
A pro.pt return .. this ucrrant fhall fee ^ ^
thi. court ..owing that the ^rr.nt U. been .xtcuttd tnd
ir..?.etio» h« been evicted within ,uch r.«onabl.
OA7S3:
.. 1978
//-
-------
p;r::r,'; c:- scr.vic: =
I hereby certify that a copy of the within warrant was
sarved by presenting a espy of came to N.?!-^-1- f •.•e.vc<;T_ f..t 7*-
an actfrt of General Motors Corpsrztion (C::) en A'."'-" i
J
1973, at the CM Willow Run vehicle asseesly plant, Vpsilanti, Mich:
of parson ma/:ir.g service)
icil 7i;la vitiiin tJ:
Statss Er.vircn.i«ntal Protection Agency)
Inspection of the establishment described in this
warrant was coraoleted on Au<*vs> M » 1978.
I5«ex cr £?^v esployce
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Inventor/ oC Property Received Pursuant to Adcinistrativ*
Warrant;-
CM Assembly nivision, '.Jillc. P.un Airport, Yrailanti,
Michigan 4C1&7
lm Y.5.!?.ici? Jns?ae=ion Record Fora (Chassis No. 2 (ytilcv)
I.CRi«-71-S< )
2. Xeroxed copies or lists ef vr:i Nu:;fcers of Cars naJciag up
Batches 4, 5, 6, 7, 8, 5 (7 sheets)
These tre the iter.s th*t E?A has received under
the authority granted it pursuant to the Acriaistrative
Karrant for Entry and Inspection
r
r~
Bruce Luncfy
Enforcement Officer
11:30 as 8/4/78
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IN TEE UNITED STATES DISTRICT COUSS
FOR THE EASTERN DISTRICT Of tXI CHI CAN
SOUTHERN DIVISION
AFFIDAVIT IN SUPPORT OF
APPLICATION FOR WARRANTS
TO ENTER AI.'D INSPECT
PURSUANT TO THE CLEAN AIR
ACT (42 O.S.C. $7.101 «t »e=.)
IN TBE MATTER OF t
GENERAL MOTOR CORPORATION
GENERAL MOTORS ASSEMBLY DIVISION
WILLOW RUN, AIRPORT
TPSILANT1, MICHIGAN 48197
AND . •
VEHICLE EMISSION LABORATORY
GENERAL MOTORS PROVING GROUND
MILFORD, MICHIGAN 48042
Matthew Low being duly sworn upon his oath, according to
law, deposes and says:
1. X am Acting Chief, Manufacturer* Programs Branch,
Mobil* Source Enforcement Division, Offict ef( Enforcement,
United States Environmental Protection Agency (EPA),
Washington, D.C. I as in charge of a program known as the
Selective Enforcement Audit (SEA) program, which will be
described below. I report to the Director of the Mobile
Source enforcement Diviaion, who is under the Deputy Assistant
Administrator for Mobile Source and Noise Enforcement; in
turn, he is under the Assistant Administrator for Enforcement,
who reports to the Administrator of the Environmental
Protection Agency.
i
2. This affidavit is made in support of an application
for Administrative warrants to enter: observe a Selective
Enforcement Audit (SEA) test on the configuration of motor
vehicles manufactured by the General Motors Corporation (CM)
of engine family I40B2 and engine code 2, with 4000-pound
inertia weight. A-3 transmission and 2.S6 rear axle ratio as
specified in a SEA test order issued on July 28, 1578, by
»
the Assistant Administrator for Enforcement of EPA; and
inspect GM's records, files, papers, processes, controls,
and facilities which are involved in and associated with
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-2-
the manufacture and testing of said configuration puriuant
to said test order at the pre&ises of the CM Willow Run vehicle
assesbly plant at. Ypsilanti, Michigan, and the CM vehicle
•mission laboratory at Milford, Michigan, pursuant to
Sections 206(b) and (c), 208(a) and 301(a) of the Clean Air
Act, 42 O.S.C. f7S25(b> and (c), 7542{a), and 7601(a), and 40
C.F.S. S8S.C01 rt se£., 41 Fed. Keg. 31472 (July 23, 1976).
3. Title XX of the Clean Air Act, 42 O.S.C. SS7401,
7520-7551, establishes the Federal prograa for control of
•otor vehicle emissions, tmission standards for motor
vehicles are prescribed pursuant to Section 202 of the Act,
42 O.S.C. S7S21. Section 206(a), 42 O.S.C. $7525(»), authorizes
the EVA Adninistrator to require new motor vehicles to be
tested to determine whether such vehicles conform with the
•mission standards and other regulations prescribed pursuant
to Section 202. Such standards are applicable for the vehicles'
useful life (5 years or 50,000 miles). The vehicles that are
tested during this certification process are usually pre-productior
prototypes. In the certification process the manufacturer
submits applications for certification, each covering one or more
•ngine families and setting forth the corresponding technical
descriptions, specifications, and operating parameters for
•ach family covered. An engine family is made up of a group
of vehicle models, known as 'configurations', with the same
basic engine and emission control system specifications. One
or more prototypes, known as durability vehicles, from each
•ngine family are subjected to testing over 50,000 miles to
determine deterioration in emissions performance for that
•ngine family. Thereafter, prototypes, known as.emission-data
vehicles, of individual configurations within a given family
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-3-
are subjected to a 4000-mile test. The emission levels of
the emission-data vehicles during their useful life are determined
by applying the 'deterioration factor' calculated froa the
50,000-mile test results for that engine family to the emission
data obtained after 4000 miles of operation. If it is demonstrated
that the prototype vehicles of the various configurations within
•n tngine family comply with the emission standards over their
useful life and with ether regulations, the Administrator issues
to the manufacturer a certificate of conformity for the particular
engine fajsily described in the application. '
4. To determine whether new motor vehicles actually being
manufactured, as distinguished froa pre-production prototypes,
meet the regulations, including emission levels, with respect to
which the certificate of conformity was issued, Section 206(b),
42 O.S.C. $752S(b), authorizes the Administrator to test and to
require the testing of new production vehicles. Zn addition, to
enforce Section 206, Section 20€(c) provides that officers or
employees designated by the Administrator may enter a manufacturer's
plant to conduct tests of vehicles and to inspect records, files,
papers, processes, controls, and facilities. Section 208(a), 42
O.S.C. S?S42(a), further requires manufactuers to establish and
maintain such records, make such reports, and provide such
information as the Administrator may reasonably require to enable •
hia to determine whether the manufacturer has acted or is acting .
in compliance with Title ZZ of the Act and the regulations
promulgated thereunder and to permit duly-designated CPA officers
or employees to have access to and copy such records. Section
301(a), 42 O.S.C. 57601(a), authorizes the Administrator to
prescribe such regulations as are necessary to carry out his
functions under the Act and to delegate to any EPA officer or
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-4-
eoployee such of his powers and duties under the Act, except t
making ef regulations, as he may deem necessary, »r^ipeai;»-.
Based upon the authority of Section 206, 206 and 301, 42 O.S.C.
$$7525, 7542 and 7601, EPA has established a program for spot
assembly-line testing known as the Selective Enforcement Audit
(SEA) program. Regulations concerning the SEA program are set
forth at 40 C.r.R. $86.601 et .see., 41 Fed. Keg. 31472 (July 28,
1976).
5.;- Onder the SEA program, the manufacturer can be required
to test a representative sample of production vehicles from a
designated motor vehicle configuration to determine whether the
configuration is being manufactured to conform to the applicable
emission requirements. The SEA regulations prescribe specific
procedures by which SEA testing is to be conducted, including
procedures for vehicle selection, preparation and pre-conditioning,
for dynamometer operation to simulate driving conditions and fo-
collection of vehicle exhaust gas samples for analysis. A SEA
is initiated by the issuance ef a test order to a manufacturer
requiring that manufacturer to conduct emissions testing and
specifying, anong ether items, the motor vehicle configuration
to be tested, the plant or storage facility from which vehicles
must be selected and the procedures to be employed in selecting
sample vehicles for SEA testing. Section 206(b) of the Act,
42 O.S.C. $7525(b), authorizes the Administrator to issue a
test order. Pursuant to Section 301(a) of the Clean Air Act,
42 O.S.C. 57601(a)/ the Administrator has delegated the authority
to conduct testing through the issuance of test orders to EPA's
Assistant Administrator for Enforcement along with the further
authority to redelegate this power to the Deputy Assistant
Administrator for Mobile Source and Noise Enforcement, and .in
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-5-
turn to redelegate to the Dirtctor, Mobil* Source Enforcement
Division. EPA Delegation 7-30, November 10, 1977. Such re-
delegation to tht Deputy Assistant Administrator was Bad* ea
November 14, 1977.
»
6. Onder Sections 206(b) end (e), 208(a) and 301(a) of
the Clean Air Act, 42 O.S.C. fS752S(b) and (e), 75<2(a) «nd
7601(a), and 40 C.F.JU S86.601 et MO., duly designated EPA
enforcement officers and employees are authorized under the
SEA program to enter the manufacturers' facilities at reasonable
times during noraal working hours for the purpose of observing
activity relating to the SEA testing and inspecting records,
files, papers, processes, controls and facilities to deteraiae if
the Manufacturer is acting in compliance with regulations and the
test order. Ordinarily, the EPA.monitoring includes observation
of vehicle and engine manufacture, assembly and storage procedures
•aaple test vehicle selection procedures; sample test vehicle
preparation, pre-conditioning, mileage accumulation, eai-ssion test
maintenance and soaking procedures, as well as the calibration of t
t
equipment; and related activities. Commonly, EPA inspects
records, files, papers, processes, controls, and facilities which
are involved in and associated with the above activities and are
maintained, used or generated by the manufacturer at the locations
where test vehicle assembly, SEA test vehicle selection and
testing take place. Also, EPA is authorized to copy documents*
photograph components, test vehicles and facilities and obtain
reasonable assistance from facility personnel in executing its
functions under the SEA program. CPA attempts to enter and
•
conduct these inspection-related activities in conjunction with
each SEA test order for the purpose of monitoring*the activity of
the manufacturer undertaken pursuant to the test order to ensure
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-6-
that such activity conforms to the requirements of the test
order and the SEA regulations.
7. The manufacturer is notified by the test order of
the configuration (or alternate) to be tested, the location
from which test vehicles will be selected, when the testing
is to begin and when E?A officers and employees will be
present. The date of completion of the test, and therefore
the duration of the EVA inspection, is not specified at the
outset because it is not possible to do so. SEA selection
and testing normally take up to two weeks. Zf the manufacturer
elects to retest vehicles in an attempt to avoid failing an
audit, or if upon failing an audit a re-audit is necessary,
audit activity under the test order may continue for a
month. The Clean Air Act Selective Enforcement Audit
regulations, 40 C.F.X. $86.601 e_t seo., 41 red. Reg. 31472
(July 28, 1976), and the test order define the scope and
purpose of.the audit. The test order identifies the EPA
• •
enforcement officers and employees who have been designated
to enter, observe activities, and inspect records, files,
papers, processes, controls and facilities used in or
associated with the audit.
t. Onder the regulations and the Clean Air Act, a SEA
test order may be issued to any manufacturer at any tiae for
any motor vehicle configuration being manufactured. When a
SEA test order provides less than 24 hours notice to the
manufacturer, the SEA test order must be authorised ia
writing by the EPA Assistant Administrator SOT Enforcement.
9. The frequency with which SEA test orders are issued
to any given manufacturer is generally based on that manufacturer's
proportionate share of total vehicle production. A manufacturer's
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-7-
prejecttd sales volume is used as the basis for establishing
the preliminary number cf SEA test orders to which that
manufacturer stay be subject annually. A higher production
volume requires more audits for sufficient review ef the
manufacturer's production. The maximum number of SEA test
orders that may issue to a given manufacturer during a given
model year is preliminarily set at the number obtained by
dividing that manufacturer's total projected sales for that
model year by 300,000 and rounding to the nearest whole
number. 40 C.F.X. $86.603(f). Any manufacturer with
projected sales of less than 150,000 may be subject to an
initial annual liait of one SEA test order. One additional
SEA test order may issue to a manufacturer for each configuration
failing an audit and, when the annual limit figure, ineeased
by these additional test orders, has been met, for each
configuration for which-evidence exists indicating noncompliance.
Because the agency's resources are limited, EPA may undertake
fewer SEA's than are authorized by its regulations.
10. Within these annual limits on the number ef test
l
orders EPA may issue to each manufacturer, EPA employs a
systematic process, as dispussed below, for choosing which
configuration ef which manufacturer to subject to an audit.
Initially, EPA seeks to issue test orders proportionately among
manufacturers according to their respective annual projected
•ales and to distribute those test orders evenly ever the course
ef • model year. This.process then employs three primary sources of
information, assembly-line test data, projected sales volume, and
certification data, as bases for assigning points to rank
configurations for the purpose ef determining which configuratin
•
would be most appropriate for an audit at a given time. Once
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-8-
configurations are ranked, the process Also considers ether.
non-quantifiable factors in reaching an ultimate decision aiout
which configuration to audit.
11. Where data being evaluated by EPA froa any of these
three sources pertains to individual configurations, points are
assigned to the respective individual configurations according to
the guidelines of the ranking systea. If the data evaluated
pertains to engine families, points based on a engine family's
data will be assigned for ranking purposes to an individual
configuration within the engine family. The -configuration
receiving the engine family's points will be identified according
to tvo factors. To begin with, its production rate Bust be high
enough to enable sample test vehicles to be selected for testing
in an expeditious manner. Once that determination has been made,
its actual physical characteristics (such as engine code, inertia
weight, type of transmission, or rear-axle ratio) which distinguish
it from other configurations within the engine family must make
it the configuration most likely to produce the highest level of
emissions of the configurations in that family.
•
12. Before ranking configurations, SCA's systematic
configuration selection process applies the general objective
that each manufacturer should receive at least one half of
its annual limit of audits as computed froa its projected
•ales during the model year, with those audits distributed
ever the model year, to ensure proper review of the total
production of each manufacturer, thus under the plan
described below, a configuration of a particular manufacturer
may replace another configuration of any manufacturer which
otherwise would have been chosen for an audit. This result
• •
occurs whenever issuing the test order to the manufacturer
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-9-
ef the replaced configuration would have subjected that
manufacturer to a disproportionate number of audits as ef
that time in the model year.
13. The most iaportant factor considered quantitatively
by EPA is a configuration's emissions data which have been
generated, by a manufacturer's ovn quarterly assembly-line
testing and submitted to ETA. The data allows EPA to
evaluate both the rate at which production vehicles coming
off the assembly line fail to meet an emission standard
for a given pollutant and the mean emission value measured
•
from assembly-line vehicles as compared to a pollutant's
•mission standard. Points due to failure rates are assigned
to a vehicle configuration as follows:
Failure Kate
Range Points
0-10% 0
11-20% 5
21-30% IS
31-40% 30
40% and above • SO
Points according to the configuration's mean emission value
compared ,to the emission standard (std) are assigned as follovst
Mean value is between 0.9
of the std and the std
Mean value is greater than 15
the std but less than or
equal to 1.1 of the std
Mean value is greater than 30
1.1 ef the std
Application of the point total derived from these calculations
will take into account the reliability that can be attributed
to the data submitted by a manufacturer. For example, EPA
will assess the number of vehicles tested in order to
•
determine the failure rate or mean emission value. Data
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-10-
reliability also depends upon the extent to which a discrepancy
is found in a comparison between past SEA data pertaining to
the configuration in question and the manufacturer's most
recently submitted internal assembly-line data, furthermore,
•valuation of this point total also will consider both
whether a manufacturer has failed to provide test data for
en* or Bore configurations in production at the time the
assembly-line data was generated and whether any "running
changes' incorporated into the manufacturer of a configuration
since that tiae may be expected to cause the emissions level
•
of the configuration to exceed standards for a pollutant.
14. The neit most important factor in this point
ranJeing system is the configuration's (or engine family'*)
projected annual sales figure as provided by the manufacturer
in its application for certification. Points based upon
projected sales are assigned as follows:
Annual Projected Sales Points
0-20.000 0
20,000-50,000 10
50,000-100,000 20
100,000 and above 30
This factor focuses on higher-production models and tends to
assure through SEA review that a high percentage of vehicles
produced complies with the emission standards.
15. Finally, certification data generated from prototype
testing and regarding configurations currently in production
are examined; that is, EPA reviews the pertinent certification
data on configurations .being manufactured either according to
the manufacturer's original application for certification or
according to its latest running change application for an amended
certificate of conformity. Zf the configuration'.a emission
•
performance level based on that data is within 10% of the emission
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-11-
standard for a given pollutant, IS points arc assigned to that
configuration. Application of this factor may be adjusted where
analysis by EPA's certification group indicates that certification
test data Bay not be indicative of whether production vehicles of
that configuration are likely to meet emission requirements. The
focus of this factor is en vehicles that have demonstrated only
•arginal compliance during the certification or running change
approval process.
16. Aside from these quantitative factors and the
objective of distributing audits among manufacturers
throughout the model year, in choosing which configuration
of which manufacturer to audit EPA takes into account the
location of the manufacturer's assembly plant and test
facilities. This factor generally is given significant
consideration if these establishments are located overseas
or are otherwise geographically removed from the Midwestern
•Onited States. Host manufacturing and testing establishments
ace located in the area, and therefore most audit activity
can be expected to take place there. EPA also considers
whether a configuration is being manufactured at a sufficiently
high rate to allow sample vehicles to be sele'cted expeditiously
for testing. Information on current production rates of
configurations might not be requested from a manufacturer
•o as to avoid suggesting to manufacturers which configur-
ations may be subject to an imminent test order. Thus, a
ttst order can designate an alternate configuration of that
manufacturer for testing, chosen according to the normal
systematic process described above subject to the constraints
regarding location and production rate, in the event that the
•
primary configuration is unavailable for testing.
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17. Autofflobilt manufacturers fee the most part have
centralized their testing facilities in eastern Michigan.
Consequently, they generally have expressed a preference
that vehicle selection for any audit of any configuration
produced in that area and others taJce place at a plant in
that area. Pursuant to 40 C.F.R. $t6.«03(d), EPA complies
with these indicated preferences when specifying locations
for vehicle selection pursuant to a test order unless the
Administrator determines that information exists indicating
• ;,t
noncompliance at other plants. If a manufacturer does not
indicate a preferred plant for a configuration being
audited, the test order will specify that test vehicle
•election be conducted at the location closest to the
manufacturer's testing facility at which a sufficient number
of vehicles are available from which a sample representative
of the configuration can be chosen expeditiously, unless it
is determined that evidence exists indicating non-
compliance at another plant. Since the goals of the EPA
program can be accomplished with a relatively high percentage
of audits testing vehicles selected from locations in eastern
Michigan, a relatively high percentage of vehicle selection
for SCA's takes place in that area. Once a test order has
been issued covering a specific manufacturer, configuration
and facility for sample test vehicle selection, EPA sends a
team of enforcement officers to the manufacturer's facilities
where selection and testing take place for the purpose of
•
monitoring the manufacturer's activity performed in response
to the test order.
18. Experience with the administration of the SEA program
• •
has produced indications that providing a manfacturer with advance
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eotice of an inttnt to rcquirt SEA testing before EPA enforcement
officers can gain access to the manufacturer's facilities pursuant
to that test order can five the manufacturer an opportunity to
alter its production processes. The manufacturer thereby can
bias production of • vehicle configuration so that Maple vehicles
•elected for SEA testing will not provide representative data
which would enable EPA to review accurately the manufacturer's
production of that configuration en the whole. Such
notice would occur if EPA enforcement officers requested
permission to enter a facility to monitor activity related
»
to the SEA, and permission to enter were refused, before
a warrant authorizing that entry were obtained.
19. On the basis of 1978 model year projected sales
alone General Motors may be subject to 20 test orders during
the model year and has been subject to 10 orders thus far.
Pord may receive 11 test orders on the basis of projected
•ales and has been issued 8. Chrysler may receive 5 test.
orders based en projected sales and has received 6, since
one of its configurations failed an audit. See 40 C.P.*.
f86.603(f). American Motors may be issued 1 test order
based on projected sales and has not yet received any. Pour
European and three Japanese auto manufacturers have been
audited during the current model year.
20. CM is a manufacturer of automobiles and operate*
facilities devoted to that purpose at its Willow Run vehicle asset
plant in Tpsilanti, Michigan. CM also operates emission
testing facilities at its vehicle emissions testing laboratory
IB Milford, Michigan/ where CM usually ships ears for
SEA testing after such ears have been selected at a vehicle
assembly plant as SEA sample test vehicles. CM produces
hundreds of different configurations during the model year.
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21. CM is still eligible to receive 10 SEA trst orders
for model year 1978 configurations. The configuration specified
in the SEA test order issued en July 28, 1978, has been chosen
•s the subject for SEA testing because of the configurations
currently under production and available for selection it has
accumulated the greatest number of points under EPA'a systematic
process for choosing configurations to audit and because no
non-quantitative factors indicate that another configuration is
•ore appropriate for auditing. Assembly-line test data submitted
by CM which, according to our analysis, pertains to its engine
code 2 configuration of its 84082 engine family with 4000-pound
inertia weight, A-3 transmission and 2.56 rear axle ratio shows a
56% failure rate of vehicles tested with respect to the emission
•tandard for nitrous oxides (HOx), giving that configuration
50 points for ranking purposes. The mean emission value for HOx
derived from this assembly-line testing (1.99 grams/mile) falls
within 0.9 of the HOx emission standard (2.00 grams/mile),
contributing another 5 points. The projected annual sales
for this configuration is 63,741, giving the configuration
an additional 20 points. Certification testing conducted for
this configuration produced data which showed the prototype
CO emissions level (15 gram/mile) to be within 10% of the CO
emission standard (also 15.0 grams/mile), thereby assigning the .
configuration IS more points. The configuration's point total
of SO is the highest for any configuration remaining in production
long enough and at a-rate high enough to allow for expeditious
•ample test vehicle selection pursuant to the SEA regulations.
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22. The document, which_is attached and incorporated
by'reference, and acts forth the SEA test order for this
configuration will be delivered to CM by an EPA enforctaent
officer at the saae tiae the designated officers and employees
appear at CM's vehicle assembly facilities in Tpsilanti,
Michigan, to begin Bonitoring CM's activities performed
pursuant to th« SEA test order. The entry, observation and
inspection there and at CM's vehicle eaission testing
laboratory^- in Milford, Michigan will be consistent in
purpose, scope, location and timing with the Clean Air Act,
this Court's adainistrative warrants, EPA regulations, the
test order and the progran described in this affidavit.
MAT-SKEW LOW
Sworn and subscribed before *e
this • day of , 1978
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^t-rrr in
NZLT3AL INSPECTION SCHEME FDR AEflDSOL FILLERS
1. The rule published by EPA on March 17, 1978 (43 FR 11318) bans
processing of fully halogenated chlorofluoralkanes, or CFC's,
for aerosol propellant uses after December 15, 1978, except for
certain, essential uses. Such processing would be done by busi-
nesses known as aerosol fillers.
2. Oily aerosol fillers who have bought CFC's since October 15,
1978 or who are otherwise known to be in the position to fill
aerosols with CFC's after Decanber 15, 1978 will be candidates
for inspection. Such fillers may be identified by inspections
of the records of CFC manufacturers, by information fron the
Consumer Product Safety Commission (CPSC), or by other means.
3. Such candidates for inspection will be ranked according to the
relative quantity of CFC's estimated to have been received after
December 15, 1978. Fillers estimated to have received more CFC1*
will be assigned higher priorities for inspection. Such esti-
mates shall be based on the records of quantities distributed
by CFC manufacturers. If the amount of CFC's received by a
candidate for inspection is unknown, then that filler will be
assigned a ranking in the middle of the ranked list.
4. A ranked list of candidates for inspection will be sent to each
Regional Office. Such lists may be amended later by information
from the CPSC or other sources.
5. The total number of aerosol fillers to be inspected in FY 79
by each Regional Office will be determined first. Then the
ranked list will be used to identify the particular fillers to
be inspected. The total number to be inspected in each Region
will be inspected, and so that an approximately equal proportion
of the fillers in each Region will be inspected.
6. The sequence of inspection shall be determined by the rank order
of the list, except that this sequence may be adjusted to conserve
Agency resources (such as by combining several inspections in one
trip.)
7. This neutral inspection scheme will be modified after the annual
reports required by the CFC rule to be submitted by March 31,
1980 have been analyzed.
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entering into nearby waterways including waters of the
Baited Scases and its tributaries, as well as posing a
threat ee Che environaent and the public health and welfare
of the United States.
b. The reported death of a 19 year eld
truck driver at the CLUS (IPA, lac.) open pits en July 25.
1978 while he was discharging waste into an open pit at the
facility. The death was possibly caused by his inhalation
of toxic fuses caused by a reaction of mixing incoapatible
toxic wastes in the open pit. Two eye witnesses to the
*
. death of the driver reported the presence of choking fuses
.'in the area when they opened the doors to their truck to
assist the driver who died. .They also reported that his
truck was parked at the edge of the open pit with the doers
open at the tise of death. Subsequent laboratory.tests of
waste taken from the pits have shown waste materials were
present in the pic, which.when mixed with the spent caustic
being discharged free the driver's truck could have caused
the deith. Final autopsy reports are still pending. It is
'allegedly reported that CLAW facility officials directed the
driver to take and discharge his wastes to the truck rasp on
the edge of an open pit. Discharging toxic waste into an
open pit at the edge of a pit is not a safe, desirable, or
acceptable practice since toxic chasical. reactions are very
probable and can result in the death of anyone nearby.
5. Section 308 of the. Federal Water Pollution
Control Act. 33 CSC 1318, and section 3007 of the Resource
•
Conservation and Recovery Act of 1976. (42 USC 6927), pro-
•
Tiding for entry, inspection, record inspection and copying
and caspling are reasonable, in the public interest and
necessary in order *to carry out the provisions of these
Acts, which Acts are designed to protect the environment, as
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w«ii as cni public health and wtlfart. IB Che ins cane
oa::tr ic iJ reasonable to assuae cha aeed for inspcesiea
b«std en ch« lnforc*cion ind obs«rvacion« ««c ouc in paragraph
4 abovt and ia the public inttrtsc.
C. hC
CKI.MIC.-vl C.'CI
wriTso STATSS
PILOTICTION
Subscribed and svern ee b«£or« &•
•C Bacon Rduct, Scat* of Louisiana,
this /o of ft. -aC . 1978.
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IN.1-2
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• -\^1>V UNITED STA S EMVircON.MLN'TAL PROTEC' \ AGE.\CY
'•( ne:^" WASHINGTON. D.C. 20-:C-0
OFFICH OF Tiiii rKNL'iVvl. COUNSEL
U'ATEitSlDJ; llriLL
KOV 81372
Memorandum
To: All Regional Counsels
*•
From: AssistnnC Administrator for F.nforcci.icnt and
^•General Counsel
Subject: Visitors' Releases and Hold Ji.irralcps A-recncnts
as a Condition to F.ntry of Ei'A EmpJoyces on
Industrial Facilities
•FACTS
As a condition to entry on industrial facilities, certain
firns have rc'jtiired li?A rr.ployerr. to sign nprccr.rnts i.'iiich
purport to release the cor.pany from tort liability. The. following
"Visitors Kclease" required by the Owens-Corning Fibcrglas
Corporation is an oxanple:
VISITORS n'LEASE
• t
In consideration o: pcrraission to enter the
premises of Owons-Cornins Fiberclss Corporation
and bciny aware of the risk of injury from •
equipment, ncglipcncc of enployecs or of other
visitors, and froir other causes, the undersigned
assumes all riuk, releases said corporation,
' • and agrees to hold it harmless from liability
^ for any injury to him or hit property while upon
its premises. . .
' READ CAUKFUL1Y BEFORE SIC::i:cC
i In addition to such "Visr.tors Releases" pinploypps or
their supervisors havp. been a.kccl to sign entry permits which
include an npree-'nent that KPA will pay for any injury or da,-naye
resulting fron our activities at the facility.
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2
.cnr.STi(v:s
1. Docs si-nin- :;uch a "Visitors KeJu.-me" cffrcUvcly
x
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U: th Hie: exception:; mentioned in the RCM af.T.rnt of rorn.r.'if f-^
Minr.i. no gcnoral public policy sccr.s tO'cxiut against express
a£ree;.-ients for ;>::.'u:ir.ption of risk, and they need nut be
supported by consideration. 10 Prr-sr?r on Tev:s 5 55 and
HestaLTi-KMit of Torrs 2d, Cli. J7A, $/«9uM. Despite tlu- general
rule;, c.-iscs arising under the Federal Yort Cir.ims Ac!:'involving
releases signed l%y civilian passengers prior to boarding ill-faced
noverni.vjnt aircraft indicate that the courts do not fr.vor sucij
agrccim-nta. (I:r i.ct!'.\n;i v. I.nc';!ir(''l Aircraft Cor-'. . J.3S i:. Supp.
530 (I'JTw)—a rclc.-.se is no ticf cns« -aj-.ninit r.rt'Si;, willful, or
wanton ncgli«;oncc in I»cw York; Horr-..' v. U.S. . 173 F. Supp. 5A7
(1959)—a ccrlcasc is ineffective unless tiic flight is pratuitous;
Monccl 1 UT v. I?. S. . 315 T2d 1HO (1963)—;i release tioos not
destroy a cause of action for wrongful death in i-iiu-.sachusctts.)
Such apparent judicial disfavor of advance! rclcasc-s is, of course,
insufficient justification for assuming the risk of s:';;rur- tiif-s,
and ordinary prudence requires us to asr-ume their validity. Alchough
signing a release docs not affect the cr.ployee's ri;:iit to bauciits
under J-'iCCA, sucli compensation will ordinarily be Much less rlian
mis'it be recovered in a tort action against' the nc^li^cnc
corporation.
Since the Federal Er.ployt-cs1 Corpcunation Act, 5 USC 2131
and S132, provides rh.it on employee r.r.y be rtquirc;! to assign
his rij;lit to sue- third parties- to the United States and that
the employee must, within limit.".tions, joy over any rt.-covcry
fro.Ti tliird parties a* rci::ibur::c'n:cnt of 1'iX'A benefits, the
employee's release prejudices tlie government's rij;ht^ as well
os.lvis ou-n. K^-iloyec-s should therRforo PC instructrt! nor to \S
sign such release-* under any circtimstancp.s.
Although an EPA employee's express assumption of tlie risk
of injury to himself may be valid, an agreement which purports
to obligate EPA to p.ay all da;:-ar>es caused by our activities is
not. The Federal Tort Claims Act, 28 USC 2676 provides:
•
The United State:; shall be liable, respecting
)* the provisions o;; this tide relating to tort
claims, in the s.inc r.;anncr and to the s;;:::c
extent as 'a private individual under li!:c
circumstances, but shall not be liable for
interest prior to judgment or for punitive damages
Congress has granted only a .'.imitcd waiver of the government's
sovereign immunity, and 26 USC 26SO lists exceptions to the
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waiver .-.'tatcd in 22 U.'C 2677. , .s^ira. j:xcfj»tions v.v.ich
cuphr be relevant in c.ir:c.-> .-iriPin* out of the actions of. Ei'A
include 2S USC 2
Any claim basc-u upon nn act or omission of an
employee of trie Government, cxcrcisjn,; due care,
in the execution of a stauite or regulation,
whether or not such statute or regulation be
valid, or bayed upon the; exercise or performance
or the failure to exercise or perforu a discretionary
functiph or duty on tlic part of -a federal agency
or an employe1 2 of the Covcrr..T.ent, whether or not
.,tho discretion involved be abused;
' ;' • • • .
and 28 USC 2650 (b):
* 0
Any claim arising out of assault, battery,
f.nlfic inprisonnant, false arrest, walicious
proscculion, al>ur.e of process, li.'jc.l, njander,
Tnirrcprcscntatip.-., deceit, or interference
with contra ct rights ...
Since- the f;ovcrn:nsnt 's tort liability is li;;titcc! by st.-ii.ute,
an a(l:.:iuiatracivp uiidcrtahing to expand :;uc!i lia'ni.i.ity by
contrr.c: is probably invalid. In any tvenc, Jvl'A fhfjld nat
create the occur-ion lor judici.n.l resolution of Liiu question.
An additional basis for considering such indemnification
acrre;n^nts invalid is the Anti-Deficiency Act, which provides
at 31 USC 663 (a) :
No officer or cti;«loyce. of Llic United States shall
make or authorize an expenditure from or create
or authorize an ob]J cation under any appropriation
or fund in excess of tho amount available therein.
S:.nce Lite extent of the £ovorn;:ient's obligation is uncertain,
the Comptroller General has Ktated that a contractual assumption
of tort '-liability is not a lawful obligation of the United States,
and payment may no: be radr pursuant to such .-jcrecrumts. (7 CG 507,
J6 CG £03, and 35 CC 86.) In fairness to companies \.-iiich nay
rely u;>o:i the validity of sucii indemnity provisions, employees •
should be instructed not to r-ign then.
Inasmuch as the Clean Air Act and the Federal Water
Pollution Control Act A.-endnan:s of 1772~i;rant EPA employees
a ric'it of entry to corporate facilities, a company r.ay not
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lawfully eomiition Liic exercise of this ri^'nt upon ti.c signing
of a release or indemnity nyrcciucnc. The Clean Air Act
provides, at 42 USC !Si7c—5(a) (2):
. . . the Administrator or his authorized
representative, upon presentation of his
credentials (A) r.hall have a rj'cht of entry
to, upon, or through any prcnicc-s in which
an omission source is located or in which any
records required to be maintained'under paragraph
(1) of this section are located . . .
• r
9 .
The procedure for enforcement of this ri^ht is provided in
42 USC lS57c—8:
(a)(3) Whenever, on the basis of nny information
available to him, Lhc Adnini^trr.Lor f Jno;. that nny
person i;: in violation o/. . . any requirement
of sect Jon !Jjj7c—9 of this title, he nny issue an
order requiring such person ro comply i/ith such r-ccr.ion
or requirement, or lie way brin£ a civil action in
accordance with suhticction (h) of this section.
(b) Tlio Atlr.iinistratpr i;:ay .coir.T.rncc «a civil actJo:i for
appropriate relief, incluiiinj; a pcrrjanant or tcrpyrary
i;iJLir,ctio.'i, whenever any i-ersun--(«'«) fails or refuses
to co::.;>ly with any requirement of section 1857c~9
of this title.
When, n firr.j refuses entry to an 1IPA enployec psrforminj; his
functions under the Clc.->.n Air Act, the employee may appropriately
/cite the stJtutc and rcuind the company of Li'/.'s ri;;ht to seek
judicial enforcement. If the company persists in its refusal,
EPA should go to court in preference to signing a "Visitors
Kelcase."
In addition to procedure for judicial cr.forcenant
similar-,to that of the Clean Air Act, the Federal Water
Pollution Control Act Amendments of 1972 reinforce CPA's
ri^ht of entry with criminal arid civil penalties. Section 309
states:
(c)(1) Any person who willfully or negligently violates
section . . .30? of. this Act (Ko:c—Section 308 establishes
the rij;lit of entry). . . shall be punished by a fine of not
less than $2,500 nor wore than $25,000 per day of violation,
or by imprisonment for not r.;ore than one year, or by both.
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If the: conviction is for a violation co^-.iii.teJ nficr
a first conviction of such person under this par.-.-.rap'.;,
|itirii.--!:r-?;v: rha.tl be by •• Tine of iu«. i;iorc than ?.')U,UJj
per d.iy P! violation, or by imprisonment for noc more
than tv;o years, cr by both.
(3) For the purposes of thir. subsection, the term 'person'
shall inc:in, in addition to tiie definition contained in
section 502(5) of this Act, any responsible! corporate
officer.
(f!) Any person who violates section . . .303 of this Act.
and any person who violates any order issued by tiic
Administrator under subsection (a) of this section
(Koto — subsection (a) provides for administrative orders
to enfbtce the right of entry), shall be subject to a
. civil penalty not to exceed $10,000 per day of such
• violation.
*
In Sec v. Sc.-urJc. 337 U.S. 54.1(1967) the Supreme Court
reversed tin; conviction of a corporation for refusal to admit
building inspectors of the CJ ty of Seattle. Justice t"iitc
held that the I'ourtii and Fourteenth Amendments required a
warrr.iK for such inspections, even where the search was
rcflsonably related to protecting the public health' and safety
and even where a corpora tinn, rather ;-han an. individual, was
the subject. Under Srr evidence obtained by inspyctory of
the 3:oo;l and Jiruy Administration has been hold i::r.c!r.iissible
Vi'icrc the inL^r.ctcrs obfained consi-nt to em:cr by threatening
prospcution under 21 USC 331, which provides crir.unal penalties
for refuse! to prrnit entry, U.S. v.' }'.rnr?r Crorory f'n..
Mb T2C, 5S7 (ych Cir., 1(J65) . Althouf.h two aiorc recent Suprass
Courl decisions, Co1»nnnc-a Cnrcrin.r Con, v. I'.S'.. 397 U.S. 72
f!970) and U.S. v. Eis-./ftil. !>2 S. Ct. 1393 (1972), r.ay create
coubt r.s to wJi»tlier Sc-c retains its original vii'.or (tec
Mcr.orandun of tiie Assistant to the Deputy General Counsel,
.'leptoiaber 29, .1972), the possibility that evidence obtained
under the F'.
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CO.1
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CO.1-1
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, I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
.-} WASHINGTON, O.C S04tO
OCT 7 IS&r
L AMD IM»O*CIMtNT
MEMORANDUM
SUBJECT: Contacts with Defendants and "Potential
Defendants in Enforcement Litigation
TO: Addressees
FROM: William A. Sullivan,
Enforcement Counsel
Host of the Agency's staff is aware of the need to
consult with the Department of Justice (DOJ) before contacting
defendants in enforcement litigation or potential defendants
in cases referred to Justice for filing. Z want to stress the
importance of giving DOJ an opportunity to participate in any
meetings with such persons or firms to review their compliance
status. Failure to observe proper practice in this regard can
eeriously undermine the Department's ability to effectively
represent EPA and ultimately diminish the prospects for satis-
factory enforcement of environmental laws.
. • i
Headquarters and regional enforcement personnel aoould
already be aware of the importance of including Justice in
such discussions when they : •» initiated by EPA, and of giving
the Department notice of ami opportunity to attend meetings
requested by potential defendants or their counsel. Justice's
caseload may not always permit them to send a representative,
in which case EPA staff should thoroughly coordinate the
ground rulea of the contact with DOJ in advance. Follow-up
information should be provided to the Department's attorneys
promptly after the conclusion of any meetings. This is the
procedure Z aball expect to be followed at all times.
X also want to urge enforcement ataff to caution their
•client* program offices and others within the Agency about
the sensitivity of contacts with persons or firms that have
been aaaed ia cases referred to Justice for filing. There •
are many matters unrelated to an enforcement action — proces-
sing of grants, development of rules, etc.— in which a party
may be interested and which may be discussed without counsel
present. Care should be taken, however, to determine the
purpose(s) for which meetings are sought by defendants and
potential defendants so that appropriate arrangements can be
-«de. Zf matters relsted to a pending case are raised by such
arsons during the course of a meeting arranged for other
purposes, the discussion should be interrupted and continued
only after eonsulation with in-house enforcement counsel and
DOJ.
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Tour cooptration will assure that litigation strategy
it not eomproffliied by inappropriate discussions, and can avoid
aabarrascnent froa last ainute cancellation or rescheduling .
of aeetings. Zf you have questions about whether a particular
person, firm, or state or local governaent is a defendant in
tnforeeaent litigation or is a potential defendant in a ease
which has been referred to the Departaent of Justice, please
contact Jonathan Libber of my staff at 426-7503.
Addresseesi John Daniel, Chief of Staff •
Assistant Administrators
Enforceaent Office Directors
Regional Administrators
Regional Enforeeaent Division Directors
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CO.1-2
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CO. I-
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DEC 1 0 1S3I
or
•KNKMAh COUMMk
MEMORANDUM
SUBJECT: Ex_ Parte Rules Covering Communications
on Issues Which are the Subject of Formal
Adjudicatory Bearings
FROM: Robert M. Perry &^ * *•*• **~
General Counsel (A-130)
TO: John E. Daniel
Chief of Staff
Office of the Administrator (A-100)
The Office of General Counsel has been asked to advise your
office on the handling of ex parte communications on issues
arising in formal Agency adjudications. This question is impor-
ant because ejc parte communications may occur when, for example,
d party to pending or ongoing litigation seeks a speedier, more
direct resolution of the litigation than is offered by the formal
adjudication. In some cases, telephone calls, letters or even
casual remarks relating to a substantive issue in litigation can
constitute an improper ex parte communication. In general, such
communications concerning the merits of a proceeding create the
risk that an adjudicatory decision may be set aside by a reviewing
court. However, the ex parte rules do not preclude the Administrator
from engaging in discussions with persons regulated by EPA
merely because those persons happen to be involved in a formal
adjudication.
Accordingly, we have prepared this memorandum to guide your
staff (1) in recognizing and avoiding .improper ex parte communi-
cations and (2) in taking remedial steps if an Improper ex parte
communication occurs. Sections I-III of this memorandum define ex
parte contacts and describe the rules governing them. Section
IV describes measures for minimizing the adverse legal impact of
such communications when they occur.
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' *• Why do we have rules about ex parte cot.sacts, and to what
do they apply?
The Agency conducts formal adjudicatory hearings in a number
of areas, including:
0 Bearings to decide whether pesticide registrations
should be denied, cancelled, suspended, or modified,
under Section 6 of the Federal Insecticide, Fungicide,
and Rodenticide Act, as amended (7 U.S.C. S136d).
4 Hearings to decide whether to assess any civil penalty
under Section 14(a) of the Federal Insecticide, Fungicide,
and Rodenticide Act, as amended (7 U.S.C. $1361(a)).
• Hearings to decide whether to assess any civil penalty
under Section 211 of the Clean Air Act; as amended (42
U.S.C. $7545).
0 Hearings to decide whether to assess any civil penalty
or to revoke or suspend any permit issued under Section
105 (a) and (f) of the Marine Protection, Research,
and Sanctuaries Act, as amended (33 U.S.C. $1418(c))
0 Hearings on the issuance of a compliance order or the
assessment of any civil penalty conducted under Section
3008 of the Solid Waste Disposal Act, as amended (42
U.S.C. $6928).
9 Hearings to decide whether to assess any civil penalty
under Section 16(a) of the Toxic Substances Control Act
(15 U.S.C. $2615(a)).
• Hearings conducted in connection with the termination
of a hazardous waste permit under the Resource Conser-
vation Recovery Act. (42 U.S.C. $6928(b)).
0 Hearings to challenge the issuance of any individual
National Pollutant Discharge Elimination System permit
for a point source discharge under Section 402 of the
Clean Water Act. (33 U.S.C. $1342).
0 Hearinos to determine data compensation amount? under
the Federal Insecticide, Fungicide, and Rodenticide Act,
as amended. (7 U.S.C. $136(d)).
Under the Administrative Procedure Act (APA), (5 U.S.C. $551 et
sea.), the decisions which result from these adjudicatory hearings
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4
must be based solely on the formal record compiled during the
proceeding, i.e., the pleadings, transcripts, exhibits, and
briefs. In order to safeguard the integrity of the adjudicatory
process, the Administrative Procedure Act prohibits all extra-
record communications relevant to the merits of an adjudicatory
proceeding between Agency decision-makers and interested persons
inside or outside the Agency. 5 U.S.C. 554(d), 557(d)(l). A
decision made in a formal adjudication may also be subject to legal
challenge if there is reason to think that it was based on any
material fact which is not a part of the formal record. 5 U.S.C.
554(d)(l), 556(e). In recognition of these statutory provisions,
the various Agency regulations concerning hearing procedures
(see 40 CFR SS22.01, 124.78 and 164.7) and pertinent judicial
precedent establish rules dealing with *ex parte" communications
made to or by persons responsible for malclng decisions in adjudi-
catory hearings. The remainder of this memorandum will discuss
what "ex parte" communications are, and the rules that apply to
them.
II. What is an ex parte communication?
One definition appears in the APA, 5 U.S.C. $551(14):
•Ex parte communications means an oral
or written communication not on the public
record with respect to which reasonably prior
notice to all parties is not given, but it
shall not include requests for status
reports. ..."
This definition is somewhat cryptic and incomplete, however. A
more useful working definition is:
•Ex parte communication" means any
communication (written or oral) concerning the
merits of an ongoing formal adjudicatory pro-
ceeding, between any decision-maker and either
(A) any interested person outside the Agency,
or (B) any member of the Agency trial staff,
.if any of the parties to the hearing did not
receive prior written notice that the communi-
cation would be made or were not invited to be
present and participate in the communication.^/
An e_x parte comirur.isation could take the form of a lette., telephone
conversation, meeting, or other informal discussion. (Of course,
17This definition is in large part a paraphrase of the definition
In 40 CFR $124.78.
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pleadings, testimony, and the like presented or filed according to
the hearing rules are not covered.)
III. What are the rules governing ex parte communications?
In brief, the APA and related EPA regulations state that e_x *
P*rte communications concerning the merits of a proceeding are
improper but also recognize that they may nonetheless occur and •
provide mechanisms designed to counteract their possible influence
on decision-making.
A. What kinds of communications concern
"the merits" of a hearing?
As indicated above,:>the prohibition against ex parte contacts
covers communications regarding the merits of an ongoing adjudi-
catory proceeding. This restriction is to be construed brcadly
and covers not just communications regarding facts in issue, but
any statement which could affect the Agency's decision on *-.he
merits. Inquiries uoout scheduling and other procedural r.ar.ters
(such as requests for status reports) may properly be made ex
parte. (The Administrator has traditionally referred such Inquiries
to the appropriate trial staff for a response.) In doubtful cases,
the prudent course is for the Agency decision-maker to treat the
communication as one which may concern the case's merits.
B. What communications vithin the Agency are prohibited?
In almost every formal adjudication conducted by EPA,^/
one of the parties is the Agency trial staff. Typically, the
order by which the Administrator (or his delegate) initiates the
hearing contains a designation of the Agency personnel who will
make up the Agency trial staff. That order often also designates
those persons who -./ill serve as adjudicators in the proceeding
(typically the Administrator or the Regional Administrator, the
Judicial Officer, an Administrative Law Judge, and sometimes
others.)
Members of the Agency trial staff are forbidden from
communicating with the Administrator tor other designated adjudi-
cators) on an ex parte basis concerning the merits of the proceeding
Although the ABministrator theoretically can consult with other
•37There is one exception:hearings under FIFRA 53(c)(l)(D) to
determine data compensation payment amounts are disputes between
private parties which are decided by EPA. The Agency is not a
party in these cases.
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Agency personnel who are not (and have not been) involved in
trial staff functions (and who do not represent other interested
persons), no substantive consultation which may concern facts at
issue should occur unless all parties are notified and given an
opportunity to participate. Otherwise, there exists a substantial
risk that the Administrator's decision might be based on evidence
that has not properly been made a part of the record of the
proceeding.
C. What communications with persons outside the Agency
are prohibited?
The APA also prohibits ex parte communications between the
Agency adjudicators and "interested persons" outside the Agency.
The legislative history .says that the term
' '-i'
"is intended to be a wide, inclusive term. . . .
The interest need not be monetary, nor need a
person be a party to, or intervenor in, the
agency proceeding to come under this section..
The tcr.. includes, but is not limited to,
parties, competitors, public officials, and
non-profit or public interest organizations
and associations with a special interest in
the matter regulated."
Government in the Sunshine Act, Committee on Goverment Operations,
H.R. REP No. 94-880, 94th Cong., 2d Sess. (1976), at 19-20,
Source Book: Legislative History, Texts, and other Documents,
Committees on Government Operations, U.S. Senate and Bouse of
Representatives, 530-531. With certain exceptions ,^/ it seems
logical to treat the very fact of a communication concerning the
merits of an adjudicatory proceeding as evidence that the person
making it is "interested." Certainly anyone whose communication
seems designed to influence the outcome of the case (or the
timing of rulings) should be treated as an interested person.
Again, where there is doubt about a communication's status, it
should be treated as one by an interested person.
As noted earlier, the ex parte rules prohibit not only
communications by interesteT'persons .to Agency adjudicators, but
also communications by Agency adjudicators to interested persons.
This could present problems in situations whTre the adjudicator
does not know whether the persons to whom he or she is speaking
_
3/ Routine inquiries from the news media, or from persons whose
Interest in the case is purely academic, normally would fall
outside the rule's coverage.
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are "interested. • Moreover, as in the case of conununi cat ions'
with non-interested Agency personnel, the adjudicator should
avoid substantive communications with any person outside the
Agency (whether interested or not) concerning facts at issue
in the proceeding, unless all parties are notified and given an
opportunity to participate. Finally, discussion by the adjudi-
cator of the merits of an ongoing proceeding may lead people to
assume the matter has been pre-judged even if technically there
is no violation of the ex parte rules.
IV. How can ex parte communications be minimized, and what
should be done if they occur?'
It is probably impossible to prevent entirely the occurrence
of improper ex parte communications. In a discussion of general
matters between industry representatives and the Administrator,
for instance, the conversation may inadvertently move to a matter
which is involved in an adjudication. The Administrator must deal
with a wide variety of topics, most of which are not covered by
the ex. parte rules, and should not feel constraineH~to avoid
discussions with persons who are regulated by EPA merely because
those persons also may be involved in some formal adjudication.
But the ex parte doctrines must be kept in mind if such discussions
are to be held.
There are two kinds of measures — preventive and curative —
that should be taken by your office to lessen the likelihood of
problems. Preventive measures should include:
(1) An awareness on the part of the Administrator and her
immediate staff of the importance of the principles
discussed in this memorandum;
(2) A system designed to keep the staff aware of the
adjudicatory proceedings that are in process, and the
parties to and issues in those proceedings;
(3) Attention to potential ex parte problems when scheduling
meetings, drafting speeches, and screening telephone
calls, and reminders by the staff of topics that should
be avoided; and
(4) Similar attention to the problem by those who handle
incoming and outgoing written correspondence; and
(5) For "ex parte" purposes, members of the Administrator's
personal staff should consider themselves to be part
of the decision-making team headed by the Administrator.
Otherwise, serious practical and legal problems could
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arise in insulating decision-makers from staff members
who have received or initiated ex parte communications.
The principal curative measure, once an improper ex parte
communication has occurred and has been recognized as such, is to
make the content and circumstances of the communication a part of
the official record of the proceeding and afford the parties a
chance to respond on the record. (If the communication was oral,
a written memorandum of it must be prepared.) The written communi-
cation (or the memorandum summarizing the oral communication)
must be forwarded to the Office of the Bearing Clerk, A-110, with
a request that copies of it be furnished to all parties. This
procedure is designed to nullify the "secret" nature of the
communication and thereby preserve the fairness and Integrity
of the decision-making process.
In cases where an interested party outside the Agency has
knowingly and egregiously violated the ex parte rules, the APA
permits the Administrator or other adjudicator to render a deci-
sion adverse to that person.
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3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
t WASHINGTON. D.C. 20460
SEP /6
1985
O'flCE Of
IN*O«CEMENT AMD
COMPLIANCE MOMirOMlMG
MEMORANDUM
SUBJECT
PROM:
TO:
Enforcement Document Release Guidelines
Courtney M. Price
Assistant Administrator for Enforcement
and Compliance Monitoring
Assistant Administrators
General Counsel
Inspector General
Associate Administrators
Regional Administrators
Regional Counsels
Attached are the Agency's new "Enforcement Document Release
Guidelines". These Guidelines will provide Agency-wide consis-
tency in the release of enforcement related documents. At the
same time, they are designed to release as much information as
possible to the public while still satisfying the Agency's
legal obligations and maintaining its enforcement program.
Accordingly, the Guidelines will assist program personnel
and enforcement attorneys in their decisions to withhold or
release enforcement documents requested by the public. As
indicated in the document, most of these decisions will be made
in response to POIA requests. Nevertheless, it is important to
emphasize --at all decisions for the release of any enforcement
document should be made on a case by case basis. If there are
any questions, the case attorney, the Regional Counsel, or an
OECM attorney should be consulted.
Questions regarding these Guidelines, should be addressed
to Bill Quinby of my staff. He may be reached at FTS 475-8781.
cc: Associate Enforcement Counsels
Program Enforcement Office Directors
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ENFORCEMENT DOCUMENT RELEASE GUIDELINES
-------
Enforcement Document Release Guidelines
Table of Contents
Page
I. Purpose 1
II. Goal 2
III. Scope 2
IV. General Principles 4
V. Releasing General Enforcement Documents 7
A. Enforcement Policy . 7
B. Enforcement Strategic Planning 9
C. Management/Administrative 10
D. Deliberative Support Documents 11
E. Reference Files 12
F.. Documents Containing Attorney-Client
Communications 12
VI. Releasing Case-Specific Documents 13
A. Case Files 13
In General 13
Attorney Work Product/Attorney-Client 16
Settlement Documents 18
Other Documents 19
B. Case Status Reports 21
VII. Conclusion 22
APPENDIX 24
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I. Purpose
The purpose of this memorandum is to provide interpretive
guidelines for releasing EPA enforcement related documents to
the public in situations when the law provides discretion. The
Agency seeks to enhance national consistency in the release of
Agency documents by providing these guidelines to enforcement
attorneys and program personnel. Such consistency will promote
fairness to all public interests and ensure that EPA meets its
legal responsibilities while protecting the effectiveness of the
enforcement program.
This memorandum is intended to provide general guidelines.
The decision to release a particular document may vary, depending
on the type of document, function of the document in the Agency
process, and the status of that process. The memorandum seeks
to articulate the common principles which can be applied to
situations in which release decisions must be made. Each program
office can tailor these guidelines to meet its individual statu-
tory and programmatic needs. If the ^w provides EPA with the
discretion to release documents, these guidelines will assist
Agency personnel in their case by case determinations.
Agency personnel should always contact the appropriate case
attorney before releasing documents relating to enforcement
activities. Notifying the appropriate enforcement attorney is
important because of the possible impact on potential or pending
enforcement actions and the changing case law related to document
release. All decisions for the release of any enforcement document
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should be made on a case by case basis, taking into account the
guidelines set out in this memorandum.
II. Goal
The EPA recognizes that an effective enforcement program is
essential to the Agency's overall mission of protecting the
environment. EPA will release as much information as possible to
the public consistent with satisfying legal obligations while
still maintaining its enforcement program. The Agency will
satisfy all statutory requirements to release or withhold docu-
ments. If the Agency has discretion to release documents, it
should generally release the documents, or portions thereof,
unless such release will interfere with the effectiveness of
its enforcement effort.-
III. Scope
The guidelines apply to any type of enforcement document,
and include written informati~i, material recorded on magnetic
tape, material contained in a computer, video tape, film, etc.
These guidelines apply whether or not there has been a specific
request for the document.
The document must be an Agency record. A document is
considered an EPA record if it has some or all of the following
characteristics: it was produced in the context of Agency work;
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its creation or physical possession arose within established
Agency procedures, and/or it was distributed to others, including
the file. Generally, if a document is within the custody and the
control of the Agency, it is considered an Agency record. Personal
notes, message slips, appointment calendars, etc., of an Agency
staff member may not be an EPA record if they were not circulated
to or used by other EPA employees, were unrelated or only partially
related to EPA activities, or were used only to jog the memory of
the author. Bureau of National Affairs v. U.S Department of
Justice 742 F.2d 1484 (D.C. Cir. 1984).
Although the focus of the memorandum is on the release of
documents, the import of this guidance pertains to information
contained within documents. In most cases, after EPA determines
that it will withhold certain information, the Agency will make
reasonable efforts to segregate out those portions of documents
which can be released. In addition, the principles in the
guidance are applicable to the release of information during
oral communications with persons outside the Agency.
This guidance does not attempt to address in any detail how
or when EPA will release documents requested under the Federal
Rules of Procedure during civil and criminal litigation. The
release of documents pursuant to discovery proceedings during
litigation will depend on the issues being litigated and the
strategy employed. Any request for documents outside of estab-
lished discovery procedures that relate to potential or pending
civil and criminal litigation should be brought to the attention
of the case attorney.
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This guidance also does not apply to requests for information
received from Congressional committees or subcommittees. For
guidance on handling such requests, Agency personnel should con-
sult previously issued policy statements which are specific to
Congressional inquiries, Memoranda of Understanding which EPA
has entered into with several committees, and OECM's Congressional
Liaison Officer in coordination with the Office of External Affairs
and, when appropriate, with the Office of General Counsel.
IV. General Principles
There are a number of statutes, regulations and rules of pro-
cedure which place constraints on the Agency's discretion in
releasing enforcement documents to the public. These statutes
include: the Administrative Procedure Act, (APA); the Freedom
of Information Act (FOIA) which is included in the APA, and
requires publication and release of certain Agency documents;
the Privacy Act which prohibits release of certain information
pertaining to individuals; and various environmental statutes
which prohibit release of trade secrets and mandate release of
certain pollution data. Other rules of procedure, such as Rule 6
of the Federal Rules of Criminal Procedure, require safeguarding
grand jury material. The EPA has promulgated regulations which
implement FOIA and state Agency policy on how it will use its
discretion to release information in certain cases. These
statutes and regulations are described more fully in the Appendix
(page 24).
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Congress has required that agencies release all requested
records unless FOIA provides a specific exemption authorizing
the withholding of those records. This guidance is based in large
part on whether specific documents fall within one of the exemp-
tions from mandatory disclosure. If a document fits within
one or more of the exemptions that are discretionary under EPA's
regulations (exemptions b(2), b(5) and b(7)), the Agency's
decision to release a document should be determined on a case
by case basis. The EPA should consider releasing the document
if no important purpose w^j-ld be served by withholding it.
Generally, once EPA releases a document, it may not later
withhold the document unless the Agency can show: 1) that it was
disclosed under explicitly limited and controlled conditions, and
2) that EPA preserved the rationale for the privilege established
in the exemption. An unauthorized leak of a document does not
necessarily waive an EPA privilege.
On occasion, a party already engaged in an administrative
enforcement proceeding or litigation with the Agency may use
POIA to enhance, replace, or otherwise modify the discovery
rules. These rules are traditionally available under the
Federal Rules of Civil Procedure, Federal Rules of Criminal
Procedure, discovery rules of other Federal courts and normal
Agency discovery procedures. Whether or not there is an estab-
lished administrative discovery procedure (e.g., the consoli-
dated rules of practice found in 40 C.F.R. Sections 22.01 et
seq.) the Agency may consider withholding documents where a
privilege exists to withhold the document under a FOIA exemption.
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For example, EPA is able to withhold investigatory records
compiled for law enforcement purposes the release of which would
generally interfere with a prospective or pending enforcement
proceeding under exemption 7(A) of FOIA. Investigatory records
(files) were defined originally by Congress as "related to enforce-
ment of all kinds of laws, labor and securities laws as well as
criminal laws. This would include files prepared in connection
with related Government litigation and adjudicative proceedings."
H.R. Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966). Expressed
another way, the information must be compiled for a demonstrated
law enforcement purpose within the Agency's enforcement authority,
or gathered in the good faith belief that the prospective defendant
might violate or has violated federal law. This is in contrast
to information gathered for routine regulatory purposes or from
customary compliance monitoring. However, an evaluation is still
necessary to determine whether the release of a document will
interfere with an investigation.
Exemption 7 of FOIA contains five additional withholding
privileges for investigatory records which EPA will less fre-
quently encounter in an administrative, civil or criminal
enforcement context. They are documents whose release would
result in at least one of the following five consequences:
7(B) deprive a person of a right to a fair
trial or an impartial adjudication,
7(C) constitute an unwarranted invasion of
personal privacy,
7(D) disclose the identity of a confidential
source,
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, 7(E) disclose investigative techniques and
procedures,
7(F) endanger the life or physical safety of
law enforcement personnel.
EPA will not provide any person with exempt documents the
release of which would harm a case in litigation. Nevertheless,
the Agency must respond to any FOIA request on a case by case
basis. Aaency personnel, including the appropriate attorney,
should first determine whether an exemption applies. If an
exemption does apply, the Agency may withhold the document, or
at its discretion, release it to the requesting party. If an
•
exemption does not apply, EPA must release the document. Under
FOIA, a party's rights are neither enhanced nor diminished by
his or her status as a private litigant. NLRB v. Robbins Tire
and Rubber Co. 437 US 214 (1978).
Various policy memoranda explain the need to segregate and
secure those documents related to criminal investigations and
enforcement activity (e.g., a Memorandum from the Assistant
Administrator dated January 7, 1985, entitled "Functions and
General Operating Procedures for the Criminal Enforcement
Program"),. EPA personnel should follow such guidance to prevent
the release of documents related to criminal proceedings. This
Document Release guidance is consistent with existing procedures
and, as a general matter, is applicable to documents related
both to criminal and civil enforcement activity.
V. Releasing General Enforcement Documents
A. Enforcement Policy Document
These documents generally instruct Agency staff on how EPA
will conduct its enforcement activities. Examples include a
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-8-
Memorandum from the Administrator dated September 20, 1982, on
enforcement action against stationary air sources which will
not be in compliance by December 31, 1982, and a Memorandum from
the Assistant Administrator for Air, Noise and Radiation dated
September 15, 1982, on issuing notices of violation under the
Clean Air Act.
EPA will release to the public those documents containing
final enforcement policy. Such documents are signed by at least
a Divison Director or equivalent. This policy is consistent
with the Agency's objective of informing the public about how it
conducts business.
Even if documents contain predecisional or deliberative
information, EPA will not necessarily withhold such documents or
portions of them under FOIA exemption 5. The Agency will withhold
those documents only if an important purpose would be served by so
doing. An important purpose for withholding might be found where
release would be likely in the future to inhibit honest and frank
communications necessary to effective policy making or might
inaccurately reflect or prematurely reveal the views of the Agency.
Such predecisional documents include draft copies which are often
circulated within the Agency for review and comment, documents
which discuss recommendations and options for the establishment
of enforcement policy, and documents which transmit them if such
documents reveal content. These documents play an integral part
in development of final enforcement policy.
A waiver of this deliberative process privilege can occur,
as in other contexts, if EPA distributes a document outside the
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Federal government. Nevertheless, if the Agency can show that
the disclosure was limited and controlled, waiver may not apply.
For example, disclosure to a state agency may result in waiver
unless the responsible office has determined that state comment
is important to the Agency decision-making process and has taken
steps to ensure that the state will keep the distributed draft
confidential (e.g., transmittal of the draft with a cover letter
explaining the need for limited distribution, numbering the docu-
ments sequentially, and requesting that all copies be returned to
EPA after »tate comment).
B. Enforcement Strategic Planning
These documents relate to enforcement initiatives and
strategies which the Agency develops to ensure that sources
comply with environmental statutes and regulations. An example
is a guidance Memorandum from the Assistant Administrator for
Solid Waste and Emergency Response dated June 18, 1982, which
broadly describes fiscal year 1983 RCRA permit and inspection
numbers. Agency personnel should release documents which pertain
to a broad class of sources, but withhold documents which are so
specific that an individual source could use the information to
circumvent EPA enforcement activity.
For example, final Agency documents detailing enforcement
expenditures for compliance inspections during a fiscal year are
documents which EPA should release to the public. On the other
hand, EPA should consider withholding documents, or portions
thereof, specifically detailing the projected inspection of
enforcement targets in various metropolitan areas. These
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documents are primarily intended for internal use and their re-
lease could enable a source to circumvent environmental statutes
and regulations. This rationale will likely be available only in
the narrow context of detailed regional plans to implement a
specific enforcement effort. If the document is not an investi-
gative record associated with a specific enforcement case, EPA
may be able to apply exemption 2 of FOIA. This exemption relates
to documents involved with internal agency personnel rules and
practices. The case law has extended the exemption to certain
predominantly internal documents, the release of which would
significantly risk circumvention of agency regulations or statutes.
Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051,
1074 (D.C. Cir. 1981). Of course, a regional plan that is in the
form of a recommendation rather than a final agency policy could
also be withheld under exemption 5's deliberative process
privilege.
C. Management/Administrative
-h«?se documents relate to the day-to-day operation and
management of the Agency. An example is a Memorandum from the
Associate Administrator and General Counsel dated November 28,
1983, which explains the requirement for clearance of significant
enforcement pleadings.
Although the Agency has discretion to withhold internal
personnel rules and routine management documents under FOIA
exemption 2, EPA will generally release these documents unless
their release would interfere with Agency operations. The
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release of most final documents related to routine budget matters
and internal Agency management will not interfere with overall
Agency activities. If the program office responsible for such
operations considers that a release would interfere with Agency
operations, it may withhold the documents under exemption 2 of
FOIA. Instances of interference are rare, and consultation with
the office of General Counsel or Regional Counsel is recommended
in such cases.
EPA can also withhold documents containing preliminary
enforcement budget information if their release would interfere
with the frank exchange of ideas prior to final budget decisions.
These documents may be exempted from disclosure under exemption 5.
D. Deliberative Support Documents
These documents accompany other enforcement documents. They
include certain transmittal memos, memos containing recommendations,
evaluation of enforcement options, suggestions, analyses, etc.,
related to general enforcement matters.
In most cases, EPA will use its discretion to release doc-
uments which are predecisional intra- and interagency documents,
unless such production would cause harm to the enforcement process.
The rationale for retention includes the protection of open and
frank discussion of enforcement options. The Agency can withhold
the deliberative portions of such requested documents under
exemption 5 of FOIA.^/
I/ "Guidance for Assertion of Deliberative Process Privilege"
Issued by the Administrator, October 3, 1984; and memorandum
from acting General Counsel, same subject, issued April 22, 1985.30
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E. Reference Files
These are materials that enforcement personnel use for
assistance in performing general Agency business. They include
technical files, sample forms, etc. Generally, EPA will make
reference documents available to the public with the exception
of materials which EPA employees own and materials published by
non-federal organizations which already are readily available
from other sources. (See 40 C.F.R. $2.100(b) for definition of
agency record.)
F. Documents Containing Attorney-Client Communica:ions
These documents which are not necessarily case specific
contain communications made in confidence between Agency staff
and attorneys for the purpose of obtaining or providing legal
advice related to EPA matters in which the "client" is authorized
to act.
EPA legal personnel will not disclose, without the client's
consent, communications made in confidence to or from an Agency
attorney for ;he purpose of obtaining or providing legal advice
related to an EPA matter. EPA may withhold documents containing
such information, if drafted by the client or the attorney. Also
in order to protect the inadvertent disclosure of the client's
confidential factual information it may withhold documents whether
or not the communication is made in the context of litigation.
The documents may be exempted from disclosure under the attorney-
client privilege included in exemption 5. Mead Data Control v.
U.S. Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1971).
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There are instances when the Agency may choose not to claim
this privilege and therefore will release documents containing
these communications. For example, EPA will release the docu-
ments if the program personnel do not consider the factual
information confidential either at the time it is communicated
or subsequently thereto. If EPA wants to withhold documents,
it should be prepared to demonstrate that the program client
expected confidentiality. Personnel making intra-regional com-
munications between a program office and a Regional Counsel's
office should be sensitive to the fact that the communications
may be confidential and not available for disclosure at a later
date. For example, the document may be stamped "confidential,
not for release under FOIA" thus limiting distribution only to
the EPA personnel who need to know and are authorized to act for
EPA on the particular matter. EPA should release documents in
which the attorney is only stating general Agency policy or if
the advice is later adopted as Agency policy. EPA should consider
release of documents, or portions thereof, containing attorney-
client communications if the release would not harm future frank
exchanges between Agency staff and its attorneys.
VI. Releasing Case-Specific Documents
A. Case Files
In General
Documents in case files contain legal and/or technical
information related to a specific case or party. Case files are
frequently located in a number of offices, including offices
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that conduct field investigations, perform technical evaluations,
or provide legal assistance.
Case file documents accumulate at these separate offices
during different stages in the enforcement process (e.g., while
EPA is investigating a party, while EPA is initiating an admini-
strative enforcement action, or after EPA issues a formal enforce-
«
ment document). Whether EPA will release the information may
depend on the stage of the enforcement activity. Release is
generally appropriate when the party is in compliance with the
law or the compliance status is unknown. Documents containing
technical information related to the party's routine compliance
monitoring or tracking are available to the public or to poten-
tially responsible parties in CERCLA litigation.
Once EPA identifies a potential violation, it may withhold
investigatory documents in order to prevent interference with
any potential or pending enforcement proceeding. In such cases,
EPA should withhold the documents to prevent harm to any potential
enforcement action which may occur by the premature release of
evidence or information. If EPA wants to withhold the documents,
it has the burden of demonstrating the potential harm to an
enforcement proceeding. This decision should be made on a case
by case basis. EPA would be able to withhold these requested
documents under exemption 7(A) of FOIA. NLRB v. Robbins Tire and
Rubber Co., 437 U.S. 214 (1978).
In many cases, the Agency will use its discretion and release
investigatory data. This policy (with the exception of criminal
investigations) serves the useful purposes of helping a source
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identify the environmental problem, allowing the source to comment
on the accuracy of EPA factual findings, and informing the public
of the extent of the environmental problem.
In other instances the Agency will consider withholding of
investigatory documents. The .further the Agency proceeds in any
enforcement action or the more data the Agency interprets, the
more reluctant it will be to use its discretion and release
documents without a mutual document exchange with the source.
The Agency will also be reluctant to release investigatory
findings where adequate quality assurance checks have not been
made, and the release of the findings could interfere witn the
enforcement activity. Finally, the necessity to protect confi-
dential information, and the greater need to maintain secrecy in
criminal investigations provide valid reasons for the Agency to
retain documents. Agency personnel should always discuss
investigatory documents which relate to enforcement activity
with the case attorney, the Regional Counsel or an OECM attorney
prior to the release decision.
Once an enforcement ac.ion is concluded, EPA will be more
willing to release investigatory documents because their release
is less likely to interfere with an enforcement proceeding.
Nevertheless, if their disclosure would interfere with other
similar or related proceedings, reveal the identify of informers,
or if other exemption 7 privileges still apply, EPA may withhold
the documents.
Case files may contain information in documents which a com-
pany considers confidential business information. As discussed
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in the Appendix, part D, EPA is statutorily prohibited from
releasing confidential business information.
Attorney Work Product And Attorney-Client Materials
Other types of documents which EPA may withhold are those
prepared by, for, or at the request of an attorney in anticipa-
tion of litigation. The courts allow EPA to withhold such
attorney work product documents in order to create a zone of
privacy around the attorney to protect the adversarial process.
Hickman v. Taylor, 329 U.S. 495 (1947). While EPA may withhold
such documents under exemption 5, it may make a discretionary
release of the documents. In such a case, the Agency staff,
including the attorney, would determine on a case by case basis
that the release would not result in harm to the attorney's
ability to operate freely in litigation. In order for EPA to
withhold a document under the attorney work product privilege,
the document must have been prepared at the time when there
was some articulable violation. Litigation need not have been
pending; however, there should be some prospect of litigation,
either administrative or judicial.
Specific types of documents which may be protectable as
attorney work products and which EPA may choose not to release
are:
• Investigative reports prepared by field
investigators under the general direction
of attorneys to verify further a viola-
tion, and which would be relied upon by a
reviewing attorney;
0 Documents prepared at the request of
technical staff working with attorneys
in anticipation of, or preparing for, an
administrative hearing or litigation;
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0 Reports prepared by consultants under
direction of attorneys to assist attorneys
in preparation for litigation;
0 Reports from experts prepared under direction
of attorneys which organize and summarize the
evidence for a particular enforcement action;
0 Attorney-prepared factual synopses of, and
opinions on, a particular case;
0 Attorney notes summarizing the facts and
observations on the evidence;
0 Attorney notes of conversations with program
personnel, company representatives, etc.; and,
6 Witness interviews conducted by attorneys or
employees working on their behalf.
Below are examples of documents which may not be protected as
attorney work products, but could be protected as investigatory
records if they meet the requirements of exemption 7:
0 Routine investigatory reports gathered
during regular compliance monitoring; and,
0 Verbatim witness reports and statements.
Whether or not a document is an attorney work product will
depend on a case by case review of the document in the context of
the particular enforcement activity. Even if the attorney work
product privilege does not apply, other exemptions, sucn as for
investigatory records (exemption 7), may permit the Agency to
withhold the document.
Case files may also contain documents with attorney-client
communications. EPA policy related to attorney-client documents
is discussed above on pages 12 - 13 in the context of general
documents.
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Settlement Documents
In negotiating a settlement of an enforcement action, EPA
will frequently exchange draft settlement terms with the opposing
party. These terms are often embodied in a draft administrative
or judicial order. The drafts facilitate Agency consideration
of settlement.
The law on whether an agency may withhold settlement docu-
ments under exemption 5 of FOIA is currently unresolved. If
there is the likelihood that non-parties will aquest settlement
documents during litigation, the lead counsel should consider
seeking a protective order. Or at the minimum he should seek a
stipulation between parties that they will not release the
settlement documents. Although in this latter case, the stipu-
lation would npt negate EPA's obligation to honor a FOIA request,
insofar as it is valid.
In all such settlement situations, even if no protective
order or stipulation exists at the time of a request under FOIA,
EPA may consider withholding sucr. documents under the theory
that review and comments are necessary for intra-agency review
of the settlement (exemption 5). However, before such records
are withheld, consultation with the Office of General Counsel or
Regional Counsel is recommended in view of the unsettled law in
this area. Any transmittal of settlement documents to an opposing
party should explain that the Agency expects that party to keep
the documents confidential. It should also contain language indi-
cating that the limited dissemination is only intended to help the
Agency decide whether the settlement is appropriate.
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The above guidance is consistent with the Agency goal of
providing for public participation in the litigation settlement
process. If a non-party feels that it needs to protect its
interests in particular litigation, the non-party may seek
intervention in a civil suit. Depending upon the scope of
intervention permitted by the Court, the party-intervenor may
participate in resolving the litigation by reviewing a negotiated
order or even participating in the negotiations. In addition,
the Department of Justice will notify the public in the Federal
Register of any proposed judicial consent decree. The public
will then have the opportunity to comment on the decree before it
becomes final.
; Other Documents
Other documents which may be located in case files are law
enforcement documents which discuss unique investigative techni-
ques not generally known outside the government. EPA need not
disclose such documents when they describe specific investigatory
techniques employed to detect violations or report on techniques
for a particular investigation (e.g., a document which lists
those particular facts which a field investigator will examine
during the inspection of a narrow class of sources). EPA should
not disclose such documents if the release of the document could
assist a potential target of investigation in avoiding EPA's
detection of an existing violation. EPA is able to withhold
'these requested documents under exemption 7(E) of FOIA.
Document retention should not extend to routine procedures
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already known to the public, such as common scientific tests,
technical reports which discuss indicators of compliance,
and methods for interviewing witnesses.
EPA will generally release to the public enforcement docu-
ments which it issues to sources during formal enforcement
actions (other than pre-final settlement documents). Examples
of such documents include notices of violation under the Clean
Air Act, administrative orders, and pleadings which are filed
with an administrative hearing ot.icer or court. Since the
decision in Cohen v. EPA, 575 F. Supp. 425 (D.D.C. 1983), EPA
has decided to release, except in very limited circumstances,
the names of potentially responsible parties for hazardous waste
site clean-up in response to FOIA requests. EPA will enter the
names into the data base of a computer system and will provide
requesters with a list of potentially responsible parties who
have received notice letters. (See Memorandum from Gene A.
Lucero, Director of the Office of Waste Programs Enforcement to
Waste Management Division Directors dated December 9, 1983.)
Documents may be in enforcement files which relate to how
EPA should use its enforcement discretion to prosecute a particular
polluter. As a general matter, EPA need not release such documents
if to do so would cause harm to the enforcement process. The
EPA is able to withhold these documents, if predecisional, because
under exemption 5 they would compromise the deliberative process
of the Agency, as attorney work product, and/or as attorney-client
privileged. In addition, they may be withheld if they are investi-
gatory documents, the release of which would interfere with a
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potential or pending enforcement action (exemption 7(A)). EPA
will release documents containing general enforcement discretion
policy statements, unless it is clear that their release would
interfere with enforcement proceedings and therefore qualify
them as investigatory records.
The need to withhold documents discussing enforcement
discretion may diminish once a final decision is made or a case
is concluded. At that time, in responding to a POIA request
after final action, the office considering a document release
should assess whether the release of a predecisional delibera-
tive document or an attorney-client communication would hinder
free and frank discussion. The attorney work product privilege
is not necessarily lost if litigation, or the potential for
litigation, no longer exists. FTC v. Grolier, Inc. 103 S.Ct.
2209 (1983). Even in the case of concluded or halted criminal
actions, additional concerns might preclude the release of the
documents. EPA will not release documents if they disclose the
identity of a confidential source, confidential information, or
investigative techniques and procedures, or if this release
would endanger the life or physical safety of law enforcement
personnel. These exemptions under POIA related to criminal
cases are found in exemptions 7(0), (E) and (F). (See page 6.)
B. Case Status Reports
These are manually created or computerized documents in which
the Agency reports enforcement activities. The documents may be
related to compliance tracking, general enforcement planning, and
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ongoing specific enforcement actions including active cases
against violating sources.
These case status reports serve a number of functions,
including compliance monitoring. The Agency will make available
to the public documents containing information relating to track-
ing various matters related to pollution sources. The EPA will
consider withholding documents (including non-public documents
after a case is referred or filed) once a source is identified
as violating an environmental standard. Whether the Agency will
release a document after it makes that identification depends on
the degree to which its release will interfere with enforcement
proceedings. For example, the release of a list of suspected
violating sources for which EPA is completing its investigations
might interfere with the normal enforcement process. The EPA is
able to withhold these requested investigatory reports under
exemption 7(A) of FOIA. Other case status reports are used as
litigation planning and management tools. These reports,
whether prepared by attorneys or program personnel working with
the attorneys, might fall within the category of attorney work
product as discussed above.
VII. Conclusion
All determinations for the release of any document must be
made on a case by case basis, in light of applicable legal
authorities and the guidelines discussed in this document.
Enforcement attorneys are available at headquarters and in all
regional legal offices for additional consultation on these
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roatters. Regions are encouraged to establish internal procedures
to ensure that the Regional Counsel is notified of all written
requests for enforcement-related documents.
The policies and procedures set out in this
document are intended solely for the guidance
of government personnel. They are not intended
and cannot be relied upon to create any rights,
substantive or procedural, enforceable by any
party in litigation with the United States. The
Agency reserves the right to act at variance with
these policies and procedures and to change them
at any time without public notice.
Courtney M. Price
Assistant Administrator for
Enforcement and Compliance Monitoring
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APPENDIX
There are a number of statutes and regulations which place
constraints on the Agency's discretion to release enforcement
documents to the public. The statutes listed below expressly
require or prohibit disclosure of records; the regulations
address EPA policy.
A. Administrative Procedure Act (APA)
The Freedom of Information Act (FOIA) is contained in Section
552 of the APA. 5 U.S.C. 5 552. Congress enacted FOIA for the
express purpose of increasing disclo; re of agency records. The
first part of FOIA mandates the disclosure of certain agency
documents. An agency is required to publish in the Federal
Register certain enumerated types of material. In addition,
FOIA requires all agencies to index and make available for public
inspection and copying other enumerated types of material. Such
documents include statements of policy and interpretation adopted
by the agency, administrative staff manuals, and instructions to
staff that _:fect members of the public. Finally, FOIA requires
disclosure, on request, of all reasonably described records,
unless the documents can be classified within one or more of the
nine categories of records that are exempt from the disclosure
requirements. Court decisions have clarified which documents
are properly classified as exempt from mandatory disclosure.
Although FOIA permits the Agency to withhold certain
documents from disclosure, it does not provide guidance on how
the Agency should use its discretion to release "exempt" or
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"privileged" documents. Because FOIA contains an exemption
from release for certain documents it does not automatically
mean EPA should withhold them.
Accordingly, EPA has promulgated regulations which clarify
how the Agency will utilize its discretion to release documents
which it could withhold as exempt under the statute. These
regulations are found in 40 C.F.R. Part 2.
B. The POIA Regulations
The Agency has determined that it will not release any
document which falls within certain of the exemptions unless it
is so ordered by a federal court or in "exceptional circumstances"
with the approval of the Office of General Counsel or Regional
Counsel. 40 C.P.R. Section 2.119. These documents include those
related to national defense or foreign policy; documents for which
a statute prohibits disclosure; trade secrets; personnel/medical
and related files, release of which would constitute an unwarranted
invasion of personal privacy; reports prepared by, or for, an
Agency responsible for regulating financial institutions; and
geological and geophysical information. On the other hand, the
regulations allow the Agency to utilize its discretion in decid-
ing whether to release requested documents related to internal
personnel practices, intra-agency or interagency memoranda, and
investigatory records. Disclosure of such records is encouraged
if no important purpose would be served by withholding the records.
40 C.F.R. Section 2.119(a)
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C. Privacy Act
Congress enacted the Privacy Act in 1974 to promote govern-
mental respect for the privacy of citizens. 5 U.S.C. S 552a.
Section 3(b) of the Act prohibits agencies, except in 12 specified
instances, from releasing or disclosing any record maintained in
a system of records pertaining to an individual (other than to
that individual) without prior written consent of the individual.
If EPA must release a document in response to a POIA request, it
is exempt from the nondisclosure provisions of the Privacy Act.
D. Confidentiality
The environmental statutes which EPA enforces prohibit the
release of documents or information that contain trade secrets
or confidential commercial or financial information. This pro-
hibition is usually located in the individual section of the
statute dealing with EPA investigatory authority, e.g., Section
114 of the Clean Air Act, 42 U.S.C. S 7414; Section 308 of the
Clean Water Act, 33 U.S.C. $ 1318; Section 3007 :f the Resource
Conservation and Recovery Act, 42 U.S.C. S 6927; and Section 104
of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. S 9604. In addition, The Trade Secrets
Act, 18 U.S.C. $ 1905, contains an independent prohibition against
certain release of confidential business information by agencies.
Section 1905 makes it a crime for a federal employee to disclose
such information.
On September 1, 1976, EPA promulgated procedures and substan-
tive rules on how to handle information that may be confidential.
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These regulations at 40 C.F.R. Part 2, Subpart B, establish
basic rules governing the handling of business information.
The regulations at 40 C.F.R. 5 2.204 require that before docu-
ments are released, EPA personnel must determine whether the
documents are confidential, or whether the business asserts a
claim of confidentiality. In general, if there is a claim, the
material cannot be released prior to a review and confidentiality
determination by the appropriate EPA legal office and notice to
the submitter. Agency guidance explaining the procedures for
handling business information under the regulations can be found
in a Memorandum from the Deputy Administrator dated November 6,
1980, and entitled "Disclosure of Business Information under FOIA."
E. Statutes Requiring Disclosure
Many of the environmental statutes EPA enforces generally
require the disclosure of certain information. For example the
Clean Air Act requires that information EPA obtains under Section
114, other than trade secrets, shall be available to the public.
CERCLA has a similar provision in Section 104(e)(2). Where the
environmental statute generally requires disclosure of information
obtained under the investigatory authority, EPA will interpret
this language consistent with FOIA.
F. The Federal Rules of Civil Procedure and Federal Rules
of Criminal Procedure
Although exemption 5 has not been construed to incorporate
every privilege in civil discovery, generally, those doroiments
which are privileged under Rule 26 of the Federal Rules of Civil
i
Procedure are documents which the Agency can withhold under FOIA.
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Pederal rules of procedure do not in themselves qualify under
exemption 3 of FOIA, which protects information specifically
exempted from disclosure by statute. However/ when Congress
subsequently modifies and enacts a rule of procedure into law
the rule may qualify under the exemption. For example, it has
been held that because Congress altered Rule 6(e) of the Federal
Rules of Criminal Procedure (concerning matters occurring before
a grand jury), that rule satisfies the "statute" requirement of
exemption 3. Therefore, grand jury material in the hands of
Agency personnel can be withheld under FOIA. Other rules require
the release of certain documents to criminal defendants.
G. Bibliography
1. Freedom of Information Case List, U.S. Dept. of
Justice, 1985 Edition;
2. Litigation under the Federal Freedom of Information
Act and Privacy Act, Adler & Halperin, Center for
National Security Studies (9th Edition, 1983);
3. Federal Information Disclosure 2 Vols. James T.
O'Reilly, McGraw-Hill, 1979 (Supplement Available);
4. Guidebook to the Freedom of Information and Privacy
Acts, Clark Boardman Co., Ltd., 1983.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 20460 , \
OCT 3S84
THE
MEMORANDUM
SUBJECT: Guidance for Assertion of Deliberative Process
Privilege
TO: Assistant Administrators
General Counsel
Inspector General
Associate Administrators
Regional Administrators
The following guidance covers the assertion of the
deliberative process privilege in response to depositions,
motions to compel discovery and questions posed at a trial or
hearing.£/
By separate action today, I have approved a delegation of
authority authorizing you to &ssert this privilege on behalf
of EPA. The guidance should be consulted and applied when
exercising the authority to assert this privilege. (See dele-
gation entitled "Assertion of Deliberative Process Privilege.)
The guidance covers three areas:
• When should EPA assert the privilege?
• Who should assert the privilege?
• How should one assert the privilege?
The purpose of this privilege is to prevent disclosure cf
certain documents or other materials containing personal advice
recommendations or opinions relating to the development of
I/ This guidance does not cover assertion of this privilege in
Freedom of Information Act matters. Nor does it cover other
discovery privileges such as attorney work product, attorney-
client, etc. Finally, proper objections may lie to discovery
that are not based on any privilege such as objections to cis-
covery of legally irrelevant evidence.
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Agency policy, rulemaking, utt of enforcement discretion, the
•ettleraent of eases, etc. Public disclosure of such material
would be likely either to inr.ibit the honest exchange of views
or inaccurately reflect or prematurely disclose the views of
the Agency.
I. Background
The deliberative process privilege applies to information
which is generated as part of the process leading to a final
Agency decision or action on a matter. The function of the
privilege is to encourage the honest and free expression of
opinion, suggestions and ideas among those formulating policy
for government agencies. United States v. Berrigan, 462 F.2d
171 (3rd Cir. 1973). *~~
Inherent in. this rationale is the assumption that, absent
the privilege, the range of fresh ideas will be limited by
fear of later public scrutiny of internal statements and sug-
gestions. Thus, effective and innovative government will
suffer. This purpose has been recognised in deciding that the
privilege applies to documents *so candid or personal in
nature that public disclosure is likely in the future to stifle
the honest and frank communication within the agency.* Coastal
States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 866 (Die"!
Cir. 1980).
The privilege likewise 'covers recommendations, draft
documents, proposals, suggestions and other subjective documents
which reflect the personal opinion of the writer rather than
the policy of the agency.* Id. Perhaps the most encompassing
definition holds that "it is well established that the privilege
obtains with respect to intra-governmental documents reflecting
advisory opinions, recommendations, and deliberations compris-
ing part of a process by which governmental decisions end
policies are formulated." Carl Zeiss Stiftung v. V.E.B. Carl
Zeiss, Jena, 40 F.R.D. 318, 324 ID.D.C. 1966), aff'd 384 F.2d
979, cert, denied 389 U.S. 952 (1967).
There are several limitations upon the otherwise broad
reach of the privilege. First, the document or other written
material Bust be predecisional, meaning generated before the
policy to which it pertains was adopted by the Agency. In the
case of mental impressions or opinions, predecisional means
that the information sought in discovery consists of thoughts
that were never communicated in writing as part of the policy
setting or rulemaking process. Any document written to explain
or support an established policy is not privileged. HLRB v.
Sears. Roebuck and Co., 421 U.S. 132 (1975). Furthermore even
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if a document was predecisional whtn prepared, it can lose that
•tatus "if it it adopted, formally or informally, as the agency
position on an issue or is used by the agency in its dealings
with the public.* Coastal States Gas Corp. v. Dept. of Energy,
617 F.2d at 866. The privilege also does not apply to matters
which are purely factual in nature unless such factual material
is inextricably bound within truly deliberative or opinion
matters. Smith v. FTC, 403 P. Supp. 1000 (D. Del. 1975).
II. When to Assert the Privilege
Although the law allows the Agency to assert this privilege
in a wide variety of situations, it does not require the Agency
to exercise that right. Indeed, it is EPA policy that the
Agency will not assert the privilege in every ease where it
applies. The Agency has a responsibility to the public to
provide the relevant facts which underlie a particular policy.
This responsibility suggests that we disclose data and the
reasons supporting a policy on occasion which might otherwise
fall within the scope of the privilege.
The Agency should release documents or other materials
o'thervise subject to the deliberative process privilege except
where:
• release of the documents or other
matters may cause harm to the public
interest (See Section IV (5) for
definition of harm),
• the documents or other matters are
subject to another privilege which
would justify nondisclosure, or
• release of the material would be
unlawful.£/
Documents or other materials should not be withheld solely
because they would reveal flaws in the case or information
embarrassing to the government.
«
III. Who Should Assert the Privilege
In general, the head of the office responsible for devel-
oping the document or material in question should assert the
2/ It is the responsibility of counsel to decide whether the
materials are subject to some other privilege or their release
is unlawful.
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privilege on EPA's behalf where appropriate. Thus, if a liti-
gant make* a discovery request at a regional office seeking
production of matters which originated with a Headquarters
program office, the decision to assert the privilege should
probably be Bade by the head of that Headquarters program
office. Of course, if the document was produced in a regional
office, the Regional Administrator would assert the privilege,
if appropriate.
IV. How to Assert the Privilege
The guidance contained in this section should be followed
in asserting the deliberative process privilege. The delibera-
tive process privilege nay be claimed only for documents or
other materials which are truly deliberative or recommendatory
in nature and .consist of advisory matter or personal opinion
rather than factual matter or Agency policy. Material or
documents which are essentially factual in nature or which
embody policies upon which the Agency has relied aay not be
withheld under the claim of deliberative process privilege.
Furthermore, material which is clearly factual and which can
be excised from deliberative material must be extracted and
disclosed.
At a deposition, trial, or hearing, or similar circum-
stances where it is impracticable for the Agency to have a
high official on call to claim the privilege, the privilege
may initially be asserted by the attorney representing the
Agency. He or she will raise and protect any potential claim
of privilege by objecting to a question posed and directing
the witness not to answer. If necessary - for example, in
order to respond to a notion to compel - the attorney must
furnish an affidavit from the appropriate Agency official
which formalizes and supports the assertion of the privilege.
The affidavit would be furnished to opposing counsel and, when
appropriate, to the hearing officer or trial judge.
In formally asserting the privilege, the delegatee should
comply with the following:
1) All delegatees must obtain the advance concurrence
of the Office of General Counsel before asserting the privilege.
2) The privilege shall be claimed by executing an
affidavit to be furnished to opposing counsel and, when
appropriate, to the hearing officer or trial judge.
3) Where appropriate, the affidavit shall identify
each document, portion of the document or other matter for
which the privilege is claimed.
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4) The affidavit shall specify that the delegatee has
personally reviewed each document or other Batter for which
the privilege is being claimed.
In eases involving an extraordinarily large amount of
material, the delegatee need only review a representative
sample. It is understood that these will be extreme cases. Zn
addition, the process of selecting the representative sample
will be under close scrutiny. Alternatively, the delegatee nay
rely upon a personal briefing of a responsible Agency employee
with personal knowledge of the matters for which the claim of
privilege is sought or upon a comprehensive affidavit of such
• responsible Agency employee in lieu of a briefing. The
affidavit of the delegatee shall state the extent of the review
and whether he or she is relying upon the briefing or affidavit
of another.
5) The affidavit shall contain a statement that in the
judgment of the affiant (delegatee), disclosure of the documents
or other matters may cause an identifiable harm to the public
interest. For these purposes, 'harm* may be found where public
disclosure is likely in the future to inhibit honest and frank
communication necessary to effective policy making or might
inaccurately reflect or prematurely reveal the views of the
Agency. Documents or other materials should not be withheld
solely because they would reveal flaws in the case or informa-
tion embarrassing to the government.
6) Any agency official wishing to assert this privilege
must be prepared to provide the material in question to the
court for an in canera review.
William D. Puckelshaus
IE-30A:J.Libber: U:426-7503:R/n.3404M:2/22/84:Disk;l1bber:8/9
Revi$1on:2/27/84:3/l/83:3/6/84:3/30/84:4/5/84:4/9/84:4/12/84
5/7/84:5/10/84:7/27/84
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DELEGATIONS . 1200 TO 106
— 10/3/84
GENERAL, ADMINISTRATIVE, AND MISCELLANEOUS
1-49. Assertion of the Deliberative Process Privilege
1. AUTHORITY. To assert the deliberative process privilege in judicial and
administrative litigation with respect to documents, portions of documents,
or other materials within the control of the Agency.
2. TO WHOM DELEGATED. Deputy Administrator, Assistant Administrators,
General Counsel, Inspector General, Associate Administrators, and Regional
Administrators.
3. LIMITATIONS. All delegatees must obtain the concurrence of the General
Counsel before asserting the deliberative process privilege.
4. REDELBGATION AUTHORITY. This authority may not be redelegated.
5. ADDITIONAL REFERENCES.
a. Rule 501, Federal Rules of Evidence;
t. Rule 26, Federal Pules of Civil Procedure: and
c. See the Memorandum of October 3, 1984, from William D. Ruckelshaus,
Administrator, to Assistant Administrators, General Counsel, Inspector General,
Associate Administrators, and Regional Administrators entitled "Guidance for
Assertion "of Deliberative Process Privilege."
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/ f*
I 5SSZ
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
ernec or
CMf MAI. COUMtCL
APR 22 1985
MEMORANDUM
TO: Deputy Administrator
Assistant Administrators
Inspector General
Associate Administrators
Regional Administrators
FROM: Gerald H. Yaraada
Acting General^eonse y
SUBJECT: Assertion of the Deliberative
Process Privilege
On October 3, 1984, the Administrator delegated to you the
authority to assert the deliberative process privilege in litigation
on the condition that you obtain the General Counsel's concurrence
before asserting the privilege (see attached). This memorandum
sets forth the procedures for obtaining that concurrence.
In general, the head of the office responsible for developing
the document or material in question should assert the privilege.
In all cases, the official asserting the privilege should prepare
a memorandum requesting the General Counsel's concurrence. If the
litigating attorney needs to file an affidavit to support the priv-
ilege, a draft affidavit should also be forwarded for review. The
Associate General Counsels, Associate Enforcement Counsels, and
Regional Counsels will be available to take the lead in preparing
these documents. The official must explain both the basis for the
conclusion that the materials fall within the deliberative process
privilege and the reasons why release of the documents may cause
harm to the public interest. Depending on the stage of the litiga-
tion, the explanation should be either in the affidavit or in the
memorandum. A representative sample of the documents should be
provided to the General Counsel along with, the affidavit or memo-
randum. The txtent to which the asserting official must review
and describe Che documents is addressed in the Administrator's
memorandum.
Attachment
cc: Regional Counsels
Associate General Counsels
Associate Enforcement Counsels
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SEP 3 01367
MEMORANDUM
SUBJECT: Change in Review Process for Concurrence in Assertions
of Deliberative Process Privilege in Litigation
i or
GtNCAAL COUNSEL
FROM: Francis S.
General Counsel
TO: Associate General Counsels
As you know, in accordance with the directive of the
former Administrator, my concurrence is required in any
assertion of the deliberative process privilege by the Agency
in response to depositions, motions to compel discovery or
questions posed at trial or hearings. The attached memoranda
set out the procedures which already are in place and which
remain in effect for obtaining my concurrence.
Until now, the Grants, Contracts and General Law Division
has been responsible for reviewing requests for my concurrence.
Effective immediately, requests for concurrence will be reviewed
by the OGC division with programmatic responsibility for the
documents or testimony in question, rather than only the Grants,
Contracts and General Law Division. For example, requests to
assert the deliberative process privilege in Superfund cost
recovery cases will be brought to the attention of the Solid
Waste and Emergency Response Division, and requests in Clean
Air Act administrative hearings will be directed to the Air
and Radiation Division.
The request for concurrence in asserting the privilege
should be sent to me, along with the division's recommendation.
The Contracts and Information Law Branch of the Grants,
Contracts and General Law Division will be available to discuss
the standards to be applied and procedures to be followed in
this review process. Contact Tom Darner at 382-5460 to request
assistance.
cc: Assistant Administrators
Regional Counsels
Regional Administrators
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Ml.1-2
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^"s"v
. i~z
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAY 31969
o«(Ct of
IMfOOCEMENT AMO
COMPllAMrE MOMTOOMiG
MEMORANDUM
SUBJECT: Strengthening the Agency's Administrative
Litigation Capacity
X^^
FROM: Edward E. Reich f,^^C^ I
Acting Assistant Administr'9
TO: Regional Counsels
Regions I-X
In my memorandum to you of January 31, 1989, entitled
"Issues Relating to Administrative Litigation1*, I asked for
comment on a proposed process for dealing with decisions on
whether or not to appeal ALJ decisions. Your comments were
generally supportive of the proposal. Following discussion of
this issue at its most recent meeting, the Enforcement Management
Council affirmed the proposal contained in the earlier draft with
the modifications set out below. Accordingly, we are instituting
a process, beginning July 1, 1989, to provide for the
incorporation of national program and other Regional perspectives
in the decision whether or not to appeal adverse ALJ decisions.
This memorandum describes the mechanism.
i
Administrative enforcement is a significant and dynamic
element of the Agency's enforcement program. As new programs
develop and mature programs evolve, decisions by the ALJs and the
Chief Judicial Officer (CJO) mold and influence the direction of
these progcn*. Adverse decisions can not only cause problems
relative t* the specific issue and program giving rise to the
decision bu&can also, particularly when rendered at the CJO
level, significantly impact enforcement programs outside of the
one immediately addressed in the decision. For this reason it is
important that the Agency's enforcement managers pay proper
attention to the decisions issued by the ALJs and CJO. As I
noted earlier, the process set out below was affirmed at the
most recent meeting of the Enforcement Management Council. This
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process is also in line with the agreement reached at the Atlanta
Regional Counsels' meeting.
In order to initiate the next phase of this effort, please
designate an attorney in your office who will serve as the
standing contact for receipt of materials relating to appeals of
administrative decisions. This contact will receive material as
identified below for all media for appropriate distribution and
action in your Region. -This person does not necessarily have to
be the person representing the Region on the substantive
conference calls that will take place but will, as necessary,
facilitate the Region's participation. Please send the name of
your designee to Fred Stiehl (LE-134P), by June 1, 1989. Fred
will prepare a master list and distribute it to all Regions.
Starting in July, the affected Region is to provide to the
relevant Associate Enforcement Counsel in OECN and the designated
standing contacts in the other Regions a notice and an
opportunity to consult on all adverse decisions of the ALJs and
all favorable decisions that are appealed to the Chief Judicial
Officer by Respondents. This process will allow for
consideration of issues of national interest that may go beyond
the concerns of the involved Region. The process will be
initiated by sending a "fax" of a copy of the decision and a
brief summary of the decision by the Regional Counsel Branch
Chief to the appropriate OECM Branch Chief, the appropriate OGC
Branch Chief, and the ORC standing contacts within 3 days of
receipt of the adverse decision. That transmission will also
notify all parties of the time of an OECM-Regional Office
conference call to discuss appeals issues. This call should
take place as soon as possible after receipt of the summary, but
no later than 4 calendar days after the "fax" is sent.V
OGC will be invited to participate in this call if they choose to
do so. If your Region wishes to participate in the appeal
decision, your contact should advise the initiating Regional
Counsel Branch Chief of your views prior to the phone call to
OECM and can choos* to participate in the call. The Regional
Counsel Branch Chief will advise OECM if a conference operator is
needed to include more than one Region in the call. In the event
of agreement to file an appeal, the discussion will center on
identifying?issues for appeal, what support will be available to
I/ A workgroup is considering amendments to the
Consolidated Rules of Practice is lengthen the time for appeal.
Until such time as the rules are changed, however, the Agency has
20 days from service of the order to file this notice of appeal
and supporting briefs. 40 C.F.R. 22.30.
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assist the lead office, and how the national and regional
perspectives can be incorporated into the briefs. The views of
the Headquarters program office will be solicited by the
Associate Enforcement Counsel and factored into the discussion
between the Region and Headquarters. In the event there is
disagreement at the Branch Chief level as to whether to appeal,
the question will be elevated to the Regional Counsel and the
Associate Enforcement Counsel for resolution.
Given the very short time available to file appeals, this
process will assure, at minimum cost, national program input and
regional consistency in a timely manner. The process should- be
evaluated in light of our experience after one year to see if
adjustments are appropriate.
cc: Deputy Regional Administrators
Enforcement Management Council
Headquarters Enforcement Office Directors
Deputy General Counsel for Legislation, Litigation,
and Regional Operations
Associate Enforcement Counsels
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
L -j
19 APR 1976
erricc or
OBWCMAI. COUMStk
MEMORANDUM
TO: All Attorneys - Office of General Counsel and
Office of Enforcement
Regional Counsel
FROM: Robert V..; Zener
General Counsel l
*)
/'
Stanley W. Legro
Assistant Administrator for nforcement
SUBJECT: Professional Obligations of Government Attorneys
We believe it might be useful to discuss some of the obligations
that we have as attorneys for the Agency, both under the Canons of
Professional Ethics 'and under various provisions of law. The following
is not intended to be a complete statement of a government attorney's
professional obligations; rather, it is intended to highlight some
matters which may deserve attention.
1 . Confidential commercial or financial information. The
Agency frequently is the recipient of confidential commercial or
financial information. Under 18 U.S.C. 1905, disclosure of such
information without consent of the firm involved is against the
law, and the Agency's regulations carry out this prohibition.
40 C.F.R. 2.119. Of course, this prohibition is binding on all
employees of the Agency. But we think it especially appropriate
to remind Agency attorneys of this obligation of confidentiality,
since Agsncy attorneys are so freqacntly entrusted with this type
of information.
2. Civil or criminal investigations. Agency attorneys are
frequently involved in investigations which could lead to referral
of cases to the Department of Justice for civil or criminal prose-
cution. Extreme care should be taken in making any public statement
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concerning such investigation, particularly where a possible criminal
violation is involved. Neither the fact that an investigation 1s in
progress nor the fact that a case has been referred to the Department
of Justice should be disclosed except where authorized by current
policy or specifically authorized. And in any event, a public
statement should not go beyond the cor-iient that an investigation is
in progress; no conclusions should be stated. Any statement that
the Agency believes a violation has occurred may be unfair to the
company or individuals involved, and could prejudice the Agency's
position in the enforcement action.
3. Attorney-client comuni cat ions. The professional
obligations of an attorney to his client attach to a government
attorney's relationship to his agency. This includes the confi-
dentiality of attorney-client communications. This also includes
the obligation to represent the client's interest within the
bounds of the law and professional ethics. The following points
deal with specific problem areas:
i) Communications with the Department of Justice. These
should be held in confidence unless tne consent of the attorney
involved at the Department of Justice is obtained.
ii) Legal advice. In the case of written opinions, some
judgment has to be exercised with respect to public release. Some
written opinions may constitute "statements of * * * interpretations
which have been adopted by the agency", in which case they must be
disclosed under the Freedom of Information Act, 5 U.S.C. 552(a)(2)(B).
In seme cases, a written opinion is supplied on the understanding
that it will be widely distributed and made available to the public.
On the other hand, written opinions may be supplied on a confidential
basis, in which case the confidence should be respected. In any case,
oral opinions are to be held in confidence unless the program people
involved agree to disclosure.
iii) Support of Agency positions. An attorney's duty is to
represent his client's position; and tnis duty applies to government
attorneys. Of course, while a question is the subject of internal
debate, an attorney is free to take any position he feels is
reasonable and lawful on an issue; and this could include disagreement
with the position taken by any particular program office. However,
-------
once the Agency has taken a position, the attorney should support it ;
in dealings with the outside world. If he feels he cannot support
it, he should request to be reassigned from that natter or resign.
iv) Dealing vn'th outside parties represented by an attorney.
When you are dealing witn outside parties whom you know to be
represented by an attorney in connection with the natter in question,
the Canons of Ethics require you to cor-municate v/ith the attorney,
unless the attorney consents to direct comunication with his client.
This can be especially significant in enforcement actions, where it
would be highly unethical to atter.pt to obtain leads and evidence
through direct communication with a party you know to be represented
by an attorney on that particular matter, unless the party's attorney
has agreed to this method of proceeding. Enforcement attorneys can,
of course, participate in general or routine plant inspections and
investigations. Hov.'ever, once the company becomes aware of any
potential enforcement action and their counsel assumes responsibility
•for the matter, consent from opposing counsel would be necessary before
any interviewing of company employees occurs during subsequent inspections.
See Disciplinary Rule 7-10/t(a)(l) of the American Bar Association's Code
of Professional Responsibility.
4. COTTIJ t^ents on bfhalf o'f the Agency. EPA lawyers are often
asked to make commitments to persons dealing v/ith the Agency which
would bind EPA to taking (or not taking) certain actions or authorize
the other party to embr.rk on a certain course of conduct. Such
co'mitments nay significantly impact on other parts of the Agency
and it is important that final commitments not be made until the
necessary coordination with the affected offices has been accomplished.
This is, of course, a problem of working in a large organization, but
as a natter of fairness to outside parties and effective representation
of the Agency, it is essential that there be internal agreement before
such commitments are made. Of course, the practicalities of negotiation
frequently make it necessary to reach an agreement at the staff level
with outside parties without first obtaining the necessary approvals
within the Agency. In this situation, the outside parties should be
advised that approval within the Agency is necessary before the Agency
is comitted.
5. Ex Parte Co^nunications. EPA attorneys are involved in a
number of different types of formal adversary proceedings, e.g., FIFRA
cancellations or 1,'PDES hearings. Usually an independent decision
maker is involved, such as a Federal court judge or an ALJ, but
sometines the decision maker may be an EPA employee assigned to that
particular proceeding. Where formal APA procedures apply or the
Agency's rules of practice linit ex jarte communication, it is
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON. D.C. 20460
JUN 13 1984
MEMORANDUM
SUBJECT:
FROM:
TO:
Liability of Corporate Shareholders and Successor
Corporations For Abandoned Sites Under the Compre-
hensive Environmental Response/ Compensation, and
Liability Act (CERCLA)
Courtney M. Price
Assistant Administrator for
and Compliance Monitoring
nforcement
Assistant Administrator for
Solid Waste and Emergency Response
Associate Enforcement Counsel for Waste
Regional Administrators
Regional Counsels
Introduction
The following enforcement memorandum, which was prepared
in cooperation with the Office of General Counsel, identifies
legal principles bearing on the extent to which corporate
shareholders and successor corporations may be held liable
for response costs that arise as a result of a release of a
hazardous substance from an abandoned hazardous waste facility.
In the discussion section pertaining to each part, the memorandum
reviews the lav on the subject from established traditional
jurisprudence to current evolving standards. Although general
.rules of liability are delineated, these principles must be
carefully applied to the unique fact pattern of any given
case.
I. THE LIABILITY OF CORPORATE SHAREHOLDERS UNDER CERCLA
Background
Normally, it is the corporate entity that will be held
accountable for cleanup costs under CERCLA. In certain
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instances, however, EPA nay want to extend liability to include
corporate shareholders. This nay arise, for example, where a
corporation, which had owned or operated a waste disposal site
at the time of the contamination, is no longer in business.
The situation nay also occur if a corporation is still in
existence, but does not have sufficient assets to reimburse
the fund for cleanup costs. There are two additional policy
reasons for extending liability to corporate shareholders.
First, this type of action would promote corporate responsibil-
ity for those shareholders who in fact control the corporate
decision-making process; it would also'deter other shareholders
in similar situations from acting irresponsibly. Second, the
establishment of shareholder liability would aid the negotiation
process and motivate responsible parties toward settlement.
Traditional corporation law favors preserving the corporate
entity, thereby insulating shareholders from corporate liability.
Nevertheless, as will be discussed below, there are exceptions
to this general principle that would allow a court to disregard
corporate form and impose liability under CCRCLA on individual
shareholders.
Issue . .
/"
What is the extent of liability for a corporate share-
holder under CERCLA for response costs .that arise as a result
of a release of a hazardous substance from an abandoned hazardous
waste facility?
i
Summary
The question of whether EPA can hold a shareholder of a
corporation liable under CERCLA is a decision that must turn
on the unique facts specific to given situation. Generally,
however, in the interests of public convenience, fairness, and
equity, EPA may disregard the Vbrporat*e entity when the shareholder
controlled or directed the activities of a corporate hazardous
waste generator, transporter, or facility.
Discussion
Section 107(a)(2) of CERCLA provides that any owner or
operator of a facility which releases a hazardous substance
shall be liable for all necessary response costs resulting
from such a release. Section 101(20)(A)(iii) of CERCLA clearly
states that the term "owner or operator* as applied to abandoned
facilities includes 'any person who owned, operated, or otherwise
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controlled activities at such facility immediately prior to
such abandonment" (emphasis added).
In addition, Sections 107(a)(3) and 107(a)(4) of CERCLA
impose liability for response costs on any person who arranged
for the disposal or treatment of a hazardous substance (the
generator)* as well as any person who accepted a hazardous
substance for transport to the disposal or treatment facility
(the transporter).
The term "person* is defined in CERCLA Section 101(21)
as, inter alia, an individual, firm, corporation, association,
partnership, or commercial entity. A 'shareholder may exist
as any of the forms mentioned in Section 101(21). Therefore, a
shareholder may be considered a person under CERCLA and, conse-
quently, held liable for response .eosts incurred as a result
of a release of a hazardous substance from a CERCLA facility
if the shareholders
• Owned, operated, or otherwise controlled activities
at such facility immediately prior to abandonment
[CERCLA Section 107(a)(2); Section 101(20)(A)(iii))>
• Arranged for the disposal or treatment (or
arranged with a transporter for the disposal or
treatment) of the hazardous substance [CERCLA
Section 107(a)(3)]s or .
• Accepted the hazardous substance for transport to
the disposal or treatment facility selected by such
person (CERCLA Section 107(a)(4)J.
Notwithstanding CERCLA's statutory language, courts
normally seek to preserve the corporate form and thus maintain
the principle of limited liability for its shareholders. */
In fact, fundamental "to the theory of corporation law is"
the concept that a corporation'is a tegal separate entity, a
legal being having' an existence separate and distinct from
See Pardo v. Wilson Line of Washington, Inc., 414 F.2d
1145, 1149 (D.C. Cir. 1969); Krivo Industrial Supply Co
v. National Distillers t Chem. Corp., 483 F.2d 1098,
1102 (5th Cir. 1973), modified per curiam, 490 F.2d 916
(5th Cir. 1974); Hoir-ian and Crimen, Inc. v. Harris, 626
F.2d 1201, 1208 (5th Cir. 1980).
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that .of its owners." £/ This concept permits corporate
shareholders "to limit their personal liability to the extent
of their investment.* */ Thus, although a shareholder nay
be considered a "person* under CERCLA (and therefore subject
to the Act's liability provisions), the application of corporate
law would tend to shield the shareholder from such liability.
Nevertheless, a court nay find that the statutory language
itself is sufficient to impose shareholder liability notwith-
standing corporation law. «/ Alternatively, to establish
shareholder liability, a court nay find that the general prin-
ciples of corporation law apply but, nonetheless, set aside
the limited liability principle through the application of
the equitable doctrine of "piercing the corporate veil.*
Simply stated, the doctrine of piercing the corporate
veil refers to the process of disregarding the corporate
2/ Krivo Industrial Supply Co. v. National Distillers * Chem.
~ Corp., 483 F.2d 1098, 1102 (5th Cir. 1973), modified per
curiam, 490 F.2d 916 (5th Cir. 1974).
3/ Id.
,f/ Sec United States v. Northeastern Pharmaceutical and
~" Chemical Company, Inc., et al. , 80-5066-CV-S-4, memorandum
op. (W.D. Mo., 1984). In Northeastern Pharmaceutical the
district court noted that a literal reading of Section
101(20)(A) "provides that a person who owns interest in a
facility and is actively participating in its management
can be held liable for the disposal of hazardous waste.*
(Memorandum op. at 36.) The court went on to find that
there was sufficient evidence to impose liability on one
of the defendants pursuant to this statutory definition
of "owner and operator,* and the Section 107(a)(l) liability
provision of the Act. The fact that the defendant was a
major stockholder did not necessitate the application of
corporate law, and thus the principle of limited liability:
•To hold otherwise and allow [the defendant] to be shielded
by the corporate veil 'would frustrate congressional purpose
by exempting from the operation of the Act a large class
of persons who are uniquely qualified to assume the burden
imposed by (CERCLA].'* (Memorandum op. at 37, citation
omitted.)
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entlty to hold either corporate shareholders or specific
individuals liable for corporate activities. £/
Zn order to determine whether to disregard corporate form
•nd thereby pierce the corporate veil, courts generally have
sought to establish two primary .elements. £/ First, that the
corporation and the shareholder share such~~a unity of interest
and ownership between then that the two no longer exist as
distinct entities. 7/ Second, that a failure to disregard the
corporate form woulH create an inequitable result. £/
The first element may be established by demonstrating
that the corporation was controlled by an 'alter ego.* This
would not include "mere majority or complete stock control,
but complete domination, not only of finances, but of policy
and business practice in respect to the transaction attacked
V See. fienn, LAW OF CORPORATIONS 55143, 146 (1961). This
~" doctrine applies with equal force to parent-subsidiary
relationships (i.e., where one corporation owns the
controlling stock of another corporation).
£/ Generally, courts have sought to establish these elements
"" in the context of various theories, such as the "identity,
•instrumentality,' "alter ego," and "agency" theories.
Although these terms actually suggest different concepts,
each employs sirr.iliar criteria for deciding whether to
pierce the corporate veil.
2/ See United States v. Standard Beauty Supply Stores,
Inc., 561 F.2d 774, 777 19th Cir. 1977); FMC Fin. Corp.
v. Murphree, 632 F.2d 413, 422 (5th Cir. 1980).
8/ See Automotriz Del Golfo de Cal. S.A. v. Resnick, 47 Cal.
" 2d 792, 796, 306 P.2d 1 (1957); DeWitt Truck Broker, Inc.
v. W. Ray Flensing Fruit Co., 540 F.2d 681, 689 (4th
Cir. 1976). Some jurisdictions require a third element
for piercing the corporate veil: that the corporate
structure must have worked an injustice on, or was the
proximate cause of injury to, the party seeking relief.
See e.g., Berger v. Columbia Broadcasting System, Inc.,
453 F.2d 991, 995 (5th Cir. 1972), cert, denied, 409
U.S. 848, 93 S.Ct. 54, 34 L.Ed.2d 89 (1972); Lowendahl
v. Baltimore i O.R.R., 247 A.D. 144, 287 N.Y.S. 62, 76
(1936), aff'd 272 N.Y. 360, 6 N.E.2d 56 (Ct. App. 1936),
but see, Brunswick Corp. v. Kaxman, 599 F.2d 34, 35-36
(2d Cir. 1979).
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so that the corporate entity as to this transaction had at the
time no separate mind, will or existence of its own." 9/
In analyzing this first element, courts have generally
considered the degree to which corporate 'formalities have
been followed [so as] to maintain a separate corporate iden-
tity.* 1P/ For example, the corporate veil has been pierced
in instances where there had been a failure to maintain adequate
corporate records, or where corporate finances had not been
kept separate from personal accounts. ££/
The second element of the test is satisfied when the
failure to disregard the corporate entity would result in
fraud or injustice. *2/ This would occur, for example, in
cases where there has-been a failure to adequately capital-
ize for the debts normally assocated with the business
undertaking, *3/ or where the corporate form has been employed
to misrepresent or defraud a creditor.
/ Berger v. Columbia Broadcasting System, Inc., 453 F.2d
"" 991, 995 (5th Cir. 1972), cert, denied, 409 U.S. 848,
93 S.Ct. 54, 34 L.Ed.2d 89 (1972).
Labadie Coal Co. v. Black, 672 F.2d 92, 96 (D.C. Cir.
1982); See Dewitt Truck Broker, Inc. v. W. Ray Flemming
Fruit Co., 540 F.2d 681, 686 n. 14 (collecting cases)
(4th Cir. 1976).
Lakota Girl Scout C., Inc, v. Havey Fund-Rais. Han., Inc.,
519 F.2d 634, 638 (8th Cir. 1975); Dudley v. Smith, 504
F.2d 979, 982 (5th Cir. 1974).
Some courts require that there be actual fraud or injustice
akin to fraud. See Chengelis v. Cenco Instruments Corp.,
386 F. Supp 862 (W.D. Pa.) aff'd mem., 523 F.2d 1050 (3d
Cir. 1975). Most jurisdictions do not require proof of
actual fraud. See DeWitt Truck Brokers v. K. Ray Flemming
Fruit Co., 540 F.2d 681, 684 (4th Cir. 1976).
See Anderson v. Abbot, 321 U.S. 349, 362, 64 S.Ct. 531,
88 L.Ed. 793 '1944); Machinery Rental, Inc. v. Herpel
(In re Multiponics, Inc.), 622 F.2d 709, 717 (5th Car.
1980).
See FMC Fin. Corp. v. Hurphree, 632 F.2d 413, 423 (5th
CTF. I960).
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In applying the dual analysis, courts act under consider
atibns of equity; therefore, the question of whether the
corporate veil will be lifted is largely one of fact, unique
to a given set of circumstances. However, the substantive
law applicable to a case may also have great importance. Per
example, in applying state corporation law, state courts have
been generally reluctant to pierce the corporate veil. *V
Federal courts, however, in applying federal standards,"Have
shown more willingness to disregard the corporate entity snd
hold individuals liable for corporate actions. ££/
In many instances federal decisions do draw upon state
law and state interpretations of common law for guidance. *'/
However, federal courts that are involved with federal
question litigation are not bound by state substantive law
or rulings. *6/ In such cases, either federal common law
I*/ See discussion in Note, Piercing the Corporate Lav Veil:
The Alter Ego Doctrine Under Federal Common Lav, 95
Harvard L.R. 653, 655 (1962).
It is well settled that a corporate entity must be dis-
regarded whenever it was formed or used to circumvent
the provisions of a statute. See United States v. Lehigh
Valley P.P., 220 U.S. 257, 259, 31 S.Ct. 387, 55 L.Ed.
45B (1911); Sehenley Distillers Corp. v. United States,
326 U.S. 432,- 437, 66 S.Ct. 247, 90 L.Ed. 181 (1945);
Kavanaugh v. Ford Motor Co., 353 F.2d 710, 717 (7th
Cir. 1965); Casanova Guns, Inc. v. Connally, 454 F.2d
1320, 1322 (7th Cir. 1972).
IV See Seymour v. Hull t Horeland Eng'g, 605 F.2d 1105 (9th
Cir. 1979); Rules of Decision Act, 28 U.S.C. $1652 (1976).
Generally, federal courts will adopt state law when to
do so is reasonable and not contrary to existing federal
policy. United States v. Polizti, 500 F.2d 856, 907 (1974).
See also discussion in note 19, infra.
18/ UNITED STATES CONSTITUTION art. VI, Cl. 2.
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or specific statutory directives may determine whether or not
to pierce the corporate veil. *9/
See Anderson v. Abbot. 321 U.S. 349, €42 S.Ct. 531, 88
L.Ed. 793 (1944)j Town of Brookline v. Gorsuch, 667 F.2d
215, 221 (1981). For a general discussion of federal
common law and piercing the corporate veil see, note 15,
supra. The decision as to whether to apply state law or
• federal standard is dependent on many factors:
i
•These factors include the extent to which: (1) a
need exists for national .uniformityi (2) a federal
rule would disrupt commercial relationships predicated
on state lav; (3) application of state law would
frustrate specific objectives of the federal program;
(4) implementation of a particular rule would cause
administrative hardships or would aid in administrative
conveniences; (5) the regulations lend weight to the
application of a uniform rule; (6) .the action in
question has a direct effect on financial obligations
of the United States; and I?) substantial federal
interest in the out come..of the litigation exists.
Even with the use of these factors, however, whether
state law will be adopted as the federal rule or
a unique federal uniform rule of decision will be
formulated remains unclear. The courts have failed
to either mention the applicable law or to state the
underlying rationale for their choice of which law to
apply." Note, Piercing the Corporate Veil in Federal
Courts; -Is Circumvention of a Statute Enough?, 13 Pac.
L.J. 1245, 1249 (1982) (citations omitted).
**
In discussions concern*ng^CERCLty the courts and Congress
have addressed several of the above mentioned factors.
CERCLA. For example, the need for national uniformity to
carry out the federal superfund program has been clearly
stated in United States v. Chem-Dyne, C-l-82-840, slip op.
(S.T. Ohio, Oct. 11, 1983). In Chem-Dyne, the court stated
that the purpose of CERCLA was to ensure the development
of a uniform rule of law, and the court pointed out the
dangers of a variable standard on hazardous waste disposal
practices that are clearly interstate. (Slip op. at
11-13.) See also, Ohio v. Georgeoff, 562 F. Supp. 1300,
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. The general rule applied by federal courts to cases in-
volving federal statutes is that 'a corporate entity nay be
disregarded in the interests of public convenience, fairness
and equity.* 20/ In applying this rule, "federal courts
will look closely at the purpose of the federal statute to
determine whether that statute places importance on the
corporate form." *y Furthermore, where a statute contains
specific directives on when the corporate entity may be
disregarded and individuals held liable for the acts or debts
of a valid corporation, courts must defer to the congressional
mandate. ££/
i
Thus, even under general principles of corporation law,
courts may consider the language of statute in determining
whether to impose liability on corporate shareholders.
Therefore, a court may use the statutory language of CERCLA
cither as a rationale for piercing a corporate veil (when
corporation law is applied) or as an independent statutory
basis for imposing liability (notwithstanding the general
principles of corporation law). 23/
1* (continued)/
1312 (N.D. Ohio, 1983); 126-Cong. Rec. H. 11,787 (Dec.
3, 1983).
The Chem-Pyne court stated that "the improper disposal
or release of hazardous substances is an enormous and
complex problem of national magnitude involving uniquely
federal interests." (Slip op. at 11.) The court further
noted that "a driving force toward the development of
CERCLA was the recognition that a response to this
pervasive condition at the State level was generally
inadequate: and that the United States has a unique
federal financial intejf-esi in thte trust fund that is
funded by general and excise taxbs." (Slip op. at 11,
citing, 5 U.S. Code Cong, t Ad. News at 6,142.) See
also, 126 Cong. Rec. at H. 11,601.
££/ Capital Telephone Company, Inc. v. F.C.C., 498 F.2d 734,
738 (D.C. Cir. 1974).•
21/ Town of Brookline v. Gorsuch, 667 F.2d 215, 221 (1981).
Anderson v. Abbot, 321 U.S. 349, 365, 64 S.Ct. 531,
88 L.Ed 793 (1944).
See discussion, supra, note 4.
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Conciusion
The Agency should rely upon the statutory language of the
Act as the basis for imposing liability on any person who
controlled or directed the activities of a hazardous waste
facility immediately prior to abandonment, or on any person
who is a generator or transporter, notwithstanding the fact
that that individual is a shareholder. Additionally, and
alternatively, the Agency nay rely on the general principles
of corporation law to pierce the corporate veil by applying
the current federal standard of public convenience, fairness,
and equity. However, when seeking to pierce the corporate
veil, the Agency should be prepared to apply the traditional
dual test previously discussed in order to provide additional
support for extending liability to corporate shareholders.
IX. THE LIABILITY OF SUCCESSOR CORPORATIONS UNDER CERCLA
Background
Section 107(a)(2) of CERCLA extends liability for response
costs to *any person who at the time of disposal of any hazardous
substance owned cr operated any facility at which such hazardous
substances were disposed of." Situations may arise, however,
where a corporation, which previously had owned or operated a
hazardous waste facility, now transfers corporate ownership to
another corporation. In such cases, it is important to determine
whether the liability of the predecessor corporation's action
regarding the disposal of hazardous waste is also transferred
to the successor corporation. 34/
Issue
What is the extent of liability for successor corporations
under CERCLA?
24/ The discussion that follows is equally applicable to
successor corporations of generators and transporters
associated with hazardous substances released from CERCLA
facility.
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Summary
When corporate ownership is transferred from one cor-
poration to another, the successor corporation is liable for
the acts of its predecessor if the new corporation acquired
ownership by verger or consolidation. If, however, the
acquisition was through the sale or transfer of assets, the
successor corporation is not liable unless:
a) The purchasing corporation expressly or
impliedly agrees to assume such obligations;
b) The transaction amounts to a *de facto" consoli-
dation or merger;
c) The purchasing corporation is merely a continu-
ation of the selling corporation} or
d) The transaction was fraudulently entered into
in order to escape liability.
Notwithstanding the above criteria, a successor corpora-
tion may be held liable for the acts of the predecessor
corporation if the new corporation continues substantially
the sane business operations as the selling corporation.
Discussion
The liability of a successor corporation, according to
traditional corporation law. is dependent on the structure of
the corporate acquistion. 2V corporate ownership may be
transferred in one of three ways: 1) through the sale of stock
to another corporation; 2) by a merger or consolidation with
another corporation; or 3) by the sale of its assets to another
corporation. 26/ Where a corporation is acquired through the
•purchase of aTl of its outstanding stock, the corporate
'entity remains intact and retains its liabilities, despite
See K.J. Transp. Dep't v. PSC Resources, Inc., 175 N.J.
Super. 447, 419 A.2d 1151 (Super. Ct. Law Div. 1980).
26/ Note, Torts - Product Liability - Successor Corporation
Strictly Liable for Defective Products Manufactured by
the Predecessor Corporation, 27 Villanova L.R. 411, 412
(1980)(citations omitted) [hereinafter cited as Note,
Torts - Product Liability].
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the change of ownership.- £?/ By the sane token, a purchasing
corporation retains liability for claims against the predecessor
company if the transaction is in the form of a merger or con-
solidation, ff/ Where, however, the acquisition is in the form
of a sale or other transferance of all of a corporation's assets
to a successor corporation, the latter is not liable for the
debts and liabilities of the predecessor corporation. *9/
There are four exceptions to this general rule of non-
liability in asset acquisitions. A successor corporation
is liable for the actions of its predecessor corporation if
one of the following is shown:
1) The purchaser expressly or impliedly
agrees to assume such obligations;
2) The transaction amounts to a *de facto"
consolidation or merger}
3) The purchasing corporation is merely a
continuation of the selling corpor-
ation; or
4) The transaction is entered into fraudulently
in order to escape liability. 30/
The application of the traditional corporate law approach
to successor liability has in many instances led to particularly
K.J. Transp. Dep't v. PSC Resources, Inc. , 175 N.J.
Super. 447, 419 A.2d 1157 (Super. Ct. Law Div. 1980).
££/ Id. A merger, occurs when one of the combining corpor-
ations continues to exist; a consolidation exists when
all of the combining corporations are dissolved and an
entirely new corporation is formed.
/ Sec N.J. Transp. Dep't v. PSC Resources, Inc., 175 N.J.
Super. 447, 419 A.2d 1151 (Super. Ct. Law Div. I960),
citing, Jackson v. N.J. Manu. Ins. Co., 166 N.J. Super.
488, 454 (Super. Ct. App. Div. 1979), cert, denied, 81
N.J. 330 (1979).
30/ Id. , Note, Torts - Product Liability, supra note, 26 at
413 n. 15-18.
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harsh and unjust results, especially with respect to product
liability cases. 31/ Therefore, in an effort to provide an
adequate remedy arid" to protect injured consumers, courts
have broadened the exemptions to the general rule by cither
modifying or recasting the *de facto" and "mere continuation*
exemptions to include an element of public policy. 32/
More recently, however, the general rule has been aban-
doned altogether by several jurisdictions and, in essence, a
new theory for establishing successor liability has evolved
based upon the similarity of business operations. 33/ The
new approach has been cast by one court in the following way:
•[wjherc...the successor corporation acquires
all or substantially all of the assets of the
predecessor corporation for cash and continues
!/ See "cKee v. Harris-Seybold Co., 109 N.J. Super. 555,
264 A.2d 98 (Super. Ct. Law Div. 1970), aff'd per curiam,
116 N.J. Super. 4BO, 288 A.2d 585 (Super. Ct. App. Div.
1972); Eloberdanz v. Joy Mfg. Co., 288 F.Supp. 817 (D.
Colo. 1968).
32/ See N.J. Transp. Dep't v. PSC Resources, Inc., 175 N.J.
Super. 447, 419 A.2d 1151 (Super. Ct. Law Div. 1980);
See also, Knapp v. North Am. Rockwell Corp., 506 F.2d
361 (3d Cir. 1974), cert, denied, 421 U.S. 965 (1975);
Cyr v. B. Of fen I Co., 501 F.2d 1145 (1st Cir. 1975);
Turner v. Bituminous Gas Co., 397 Mich. 406, 244 N.N.2d
873 (1976).
33/ The theory has also been referred to as the "product-
line* approach. In adopting this new approach to
successor liability, some courts have abandoned the
traditional rule of non-liability in asset acquisitions.
See e.g., Ray v. Alad Corp., 19 Cal. 3d 22, 560 P.2d
3, 136 Cal. Rptr. 574 (1977). Other courts have con-
sidered the new approach as an exemption to the general
rule; See e.g., Daweko v. Jorgensen Steel Co., 290 Pa.
Super. Ct. 15, 434 A.2d 106 (1981); Note, Torts - Product
Liability, supra note, 26 at 418 n. 38. And, a few
jurisdictions have rejected the new approach. See
Travis v. Harris Corp., 565 F.2d 443 (7th Cir. 1977);
Tucker v. Paxson Mach. Co., 645 F.2d 620 (8th Cir. 1981).
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essentially the same manufacturing operation
as the predecessor corporation the successor
remains liable for the products liability claims
. of its predecessor.* 3V
This theory of establishing successor liability differs
from the *de facto* and *nere continuation" exemptions in that
the new approach does not examine whether there is a continuity
of corporate structure or ownership (e.g., whether the predecessor
and successor corporation share a common director or officer).
Instead, according to the new theory, liability will be imposed
if the successor corporation continues^essentially the same
manufacturing or business operation as its predecessor corporation,
even if no continuity of ownership exists between them. ££/
Until recently, this new approach for establishing successor
liability was confined mostly to product liability cases.
However, a recent New Jersey decision extended its application
to the area of environmental torts. The Superior Court of New
Jersey, in N.J. Transportation Department v. PSC Resources,
Inc. 21/» rejected the traditional corporate approach to
successor liability where the defendant and its predecessor
corporation had allegedly discharged hazardous wastes. The
court reasoned that the underlying policy rationale for
abandonment of the traditional approach in defective product
cases is applicable to environmental torts. Therefore, the
court held that a corporation which purchased assets of another
corporation and engaged in the practice of discharging hazar-
dous waste into a state-owned lake is strictly liable for
present and previous discharges made by itself and the prede-
cessor corporation because the successor continued the same
waste disposal practice as its predecessor.
»•.
^^•i^BV^W^M^^^^B *^'
34/ Ramirez v. Amstead Indus'?? Inc.,-171 N.J. Super. 261, 278,
406 A.2d 818 (Super. Ct. App. Div. 1979), aff*d, 86 N.J.
332, 431 A.2d 811 (1981).
35/ see Ray v. Alad Corp., 19 Cal. 3d 22, 560 P.2d 3, 136 Cal.
Rptr. 574 (1977); some form of acquisition, however, is
still required. See Meisal v. Modern Press, 97 Wash.
2d 403, 645 P.2d 693.
36/ 175 N.J. Super. 447, 419 A.2d 1151 (Super. Ct. Law Div.
1980);
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A similar "continuity of business operation* approach has
been used in cases involving statutory violations. ?'/ The
Ninth Circuit, for example, held in a case involving the Federal
Insecticide, Fungicide, and Rodenticide Act [FIFRA] ££/, that
•EPA1* authority to extend liability to successor corporations
•terns from the purpose of the statute it administers, which is
to regulate pesticides to protect the national environment.* £V
Furthermore, the court noted that "[t]he agency nay pursue the
objectives of the Act by imposing successor liability where it
will facilitate enforcement of the Act.* ^£/ After establishing
that there had been violations of FIFRA by the predecessor
corporation, the court found that there was substantial continuity
of business operation between the predecessor and successor
corporations to warrant imposition of successor liability.
Although CERCLA is not primarily a regulatory statute,
public policy considerations and the legislative history of
the Act clearly Indicate that federal law would be applicable
to CERCLA situations involving successor liability. *V
Therefore, it is reasonable to assume that courts wouTd similarly
adopt the federal 'continuity of business operation approach"
in cases involving CERCLA.
Conclusion
In establishing successor liability under CERCLA, the
/ See Golden State Bottling Co. v. NLRB , 414 U.S. 168, 94
S.Ct. 414, 38 L.Ed2d 388 (1973); Slack v. Havens, 522
F.2d 1091 (9th Cir. 1975). .
7 U.S.C. $136 et
Oner II, Inc. v. United-Spates Environ. Protection
Agency, 597 F.2d 164, 186 (9th Cir. 1979).
«£/ id.
See discussion, supra, n. 19; One of Congress1 primary
concerns in enacting CERCLA was to alleviate the vast
national health hazard created by inactive and abandoned
disposal sites. See e.g. , Remarks of Rep. Florio, 126
Cong. Rec. H. 9,154 (Sept. 19, 1980), 126 Cong. Rec.
H. 11,773 (Dec. 3. 1980).
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Agency should initially utilize the "continuity of business
operation* approach of federal lav. However, to provide
additional support or an alternative basis for successor
corporation liability, the Agency should be prepared to apply
the traditional exemptions to the general rule of non-liability
in asset acquisitions.
cct A. James Barnes, General Counsel
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Ml.1-5
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12/1/94
REVISER'S NOTE
Interim Guidance on Review of Indian Lands Enforcement Actions
(MI.1-5)
Portions of the Interim Guidance on Review of Indian Lands
Enforcement Actions (Document Number MI.1-5) are inapplicable as
a result of the creation of the American Indian Environmental
Office (AIEO) within the Office of Water. Policy and management
issues related to enforcement actions should now be coordinated
with the AIEO instead of OFA and its Senior Legal Advisor.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT 2 1 199Z
OFFICE OF ENFORCEMENT
MEMORANDUM
SUBJECT: Interim Guidance on Review of Indian Lands Enforcement
Actions
FROM: Thomas L. McCall, Jr. ff$) ^(C
Acting Deputy Assistant Administrator
for Federal Facilities Enforcement
TO: Deputy Regional Administrators
Enforcement Counsels
Regional Counsels
Under EPA's Indian Policy Implementation Guidance issued by
Deputy Administrator Alvin L. Aim on November 8, 1984, Regional
Administrators proposing to initiate direct EPA actions against
Tribal facilities "should first obtain concurrence from the
Assistant Administrator for Enforcement and Compliance
Monitoring, who will act in consultation with the Assistant
Administrator for External Affairs and the General Counsel." At
the time this guidance was issued, the Office of Federal
Activities, which is responsible for coordination of the EPA
Indian Program and has the lead in all general policy issues
affecting Native Americans, was a part of the Office of External
Affairs. As you know, the name of the Office of Enforcement and
Compliance Monitoring has been changed to the Office of
Enforcement, the Office of External Affairs has been eliminated
as such and the Office of Federal Activities is now a part of the
Office of Enforcement under my supervision.
I have become increasingly concerned that although OFA -
Headguarters and its regional counterparts - is charged with the
responsibility for coordination of the EPA Indian program, it is
not always consulted in the process of initiating enforcement
actions on Indian lands. The issues of Tribal sovereignty and
the federal responsibilities on Indian lands complicate all
enforcement actions against Tribal governments. Excluding the
program management from enforcement decisions runs a great risk
of enforcement actions that are inconsistent with program
management decisions and deprives program managers of enforcement
information relevant to their decisions.
Therefore, I am assigning responsibility to coordinate
policy and management issues, and legal issues in consultation
with the Office of General Counsel, to the Senior Legal Advisor
•..-'?.'. Pnnlca on R^cyclrxt P:\p-:
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of OFA. The Senior Advisor will coordinate Headquarters and
regional review of the proposed enforcement action. The
designation of this Senior Executive Service-level person is
intended to provide the maturity and stature to expeditiously and
thoroughly coordinate review of the policy and legal issues
involved. The Senior Legal Advisor will make appropriate
recommendations to me based on the review, and I will advise the
Assistant Administrator for Enforcement concerning his
enforcement options for both civil and criminal actions; however,
nothing herein is intended to infringe upon the delegated
authority of either the Directors of Civil or of Criminal
Enforcement to determine which alleged environmental violations
warrant investigation or referral to the Department of Justice.
Until the Indian Policy Implementation Guidance is formally
revised, all future direct EPA enforcement actions against Tribal
facilities, except for emergency situations, should be submitted
to the Assistant Administrator for Enforcement, who will act in
consultation with the Office of Federal Activities, including its
Senior Legal Advisor, and the General Counsel.
If there are any questions concerning the procedure outlined
above, please let me know.
WE CONCUR:
Robert Van Heuvelen
Director of Civil Enforcement
Earl Devaney
Director of Criminal Enforc
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11/8/84
EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL
PROGRAMS ON INDIAN RESERVATIONS
INTRODUCTION
The President published a Federal Indian Policy on January 24, 1983,
supporting the primary role of Tribal Governments in matters affecting
American Indian reservations. That policy stressed two related themes:
(1) that the Federal Government will pursue the principle of Indian
"self-government" and (2) that it will work directly with Tribal
Governments on a "government-to-government" basis.
The Environmental Protection Agency (EPA) has previously issued general
statements of policy which recognize the importance of Tribal Governments
in regulatory activities that impact reservation environments. It is the
purpose of this statement to consolidate and expand on existing EPA Indian
Policy statements in a manner consistent with the overall Federal position
in support of Tribal "self-government" and "government-to-government" •v-la-
tions between Federal and Tribal Governments. This statement sets :->rth
the principles that will guide the Agency in dealing with Tribal Governments
and in responding to the problems of environmental management on American
Indian reservations in order to protect human health and the environment.
The Policy is intended to provide guidance for EPA program managers in the
conduct of the Agency's congressionally mandated responsibilities. As
such, it applies to EPA only and does not articulate policy for other
Agencies in the conduct of their respective responsibilities.
It is important to emphasize that the implementation of regulatory
programs which will realize thec. principles on Indian Reservations cannot
be accomplished immediately. Effective implementation will take careful
and conscientious work by EPA', the Tribes and many others. In many cases,
it will require changes in applicable statutory authorities and regulations.
It will be necessary co proceed in a carefully phased way, to learn from
successes and failures, and to gain experience. Nonetheless, by beginning
work on the priority problems that exist now and continuing in the direction
established under these principles, over time we can significantly enhance
environmental quality on reservation lands.
POLICY
In carrying out our responsibilities on Indian reservations, the
fundamental objective of the Environmental Protection Agency is to protect
human health and the environment. The keynote of this effort will be to
give special consideration to Tribal interests in making Agency policy,
and to insure the close involvement of Tribal Governments in making
decisions and managing environmental programs affecting reservation lands.
To meet this objective, the Agency will pursue the following principles:
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1. THE AGENCY STANDS READY TO WORK DIRECTLY WITH INDIAN TRIBAL GOVERNMENTS
ON A ONE-TO-ONE BASIS (THE "GOVERNMENT-TO-(
THAN AS SUBDIVISIONS OF OTHER GOVERNMENTS.
ON A ONE-TO-ONE BASIS (THE "GOVERNMENT-TO-GOVERNMENT" RELATIONSHIP), RATHER
EPA recognizes Tribal Governments as sovereign entities with primary
authority and responsibility for the reservation populace. Accordingly,
EPA will work directly with Tribal Governments as the independent authority
for reservation affairs, and not as political subdivisions of States or
other governmental units.
2. THE AGENCY WILL RECOGNIZE TRIBAL GOVERNMENTS AS THE PRIMARY PARTIES
FOR SETTING STANDARDS, MAKING ENVIRONMENTAL POLICY DECISIONS AND MANAGING
PROGRAMS FOR RESERVATIONS, CONSISTENT WITH AGENCY STANDARDS AND REGULATIONS.
In keeping with the principle of Indian self-government, the Agency
will view Tribal Governments as the appropriate non-Federal parties for
making decisions and carrying out program responsibilities affecting
Indian reservations, their environments, and the health and welfare of
the reservation populace. Just as EPA's deliberations and activities have
traditionally involved the interests and/or participation of State Govern-
ments, EPA will look directly to Tribal Governments to play this lead role
for matters affecting reservation environments.
3. THE AGENCY WILL TAKE AFFIRMATIVE STEPS TO ENCOURAGE AND ASSIST
TRIBES IN ASSUMING REGULATORY AND PROGRAM MANAGEMENT RESPONSIBILITIES
FOR RESERVATION LANDS.
The Agency will assist interested Tribal Governments in developing
programs and in preparing to assume regulatory and program management
responsibilities for reservation lands. Within the constraints of EPA's
authority and resources, this aid will include providing grants and other
assistance to Tribes similar to that we provide State Governments. The
Agency will encourage Tribes to assume delegable responsibilities, (i .e.
responsibilities which the Agency has traditionally delegated to State
Governments for non-reservation lands) under terms similar to those
governing delegations to States.
Until Tribal Governments are willing and able to assume full responsi-
bility for delegable programs, the Agency will retain responsibility
for managing programs for reservations (unless the State has an express
grant of jurisdiction from Congress sufficient to support delegation to
the State Government). Where EPA retains such responsibility, the Agency
will encourage the Tribe to participate in policy-making and to assume
appropriate lesser or partial roles in the management of reservation
programs.
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4. THE AGENCY WILL TAKE APPROPRIATE STEPS TO REMOVE EXISTING LEGAL AND
PROCEDURAL IMPEDIMENTS TO WORKING DIRECTLY AND EFFECTIVELY WITH TRIBAL
GOVERNMENTS ON RESERVATION PROGRAMS.
A number of serious constraints and uncertainties in the language
of our statutes and regulations have limited our ability to work directly
and effectively with Tribal Governments on reservation problems. As
impediments in our procedures, regulations or statutes are identified
which limit our ability to work effectively with Tribes consistent with
this Policy, we will seek to remove those impediments.
.5. THE AGENCY, IN KEEPING WITH THE FEDERAL TRUST RESPONSIBILITY, WILL
ASSURE THAT TRIBAL CONCERNS AND INTERESTS ARE CONSIDERED WHENEVER EPA'S
ACTIONS AND/OR DECISIONS MAY AFFECT RESERVATION ENVIRONMENTS.
EPA recognizes that a trust responsibility derives from the his-
torical relationship between the Federal Government and Indian Tribes
as expressed in certain treaties and Federal Indian Law. In keeping
with that trust responsibility, the Agency will endeavor to protect
the environmental interests of Indian Tribes when carrying out its
responsibilities that may affect the reservations.
6. THE AGENCY WILL ENCOURAGE COOPERATION BETWEEN TRIBAL, STATE AND
LOCAL GOVERNMENTS TO RESOLVE ENVIRONMENTAL PROBLEMS OF MUTUAL CONCERN.
Sound environmental planning and management require the cooperation
and mutual consideration of neighboring governments, whether those
governments be neighboring States, Tribes, or local units of government.
Accordingly, EPA will encourage early communication and cooperation
among Tribes, States and local governments. This is not intended to
lend Federal support to any one party to the jeopardy of the interests
of the other. Rather, it recognizes that in the field of environmental
regulation, problems are often shared and the principle of comity
between equals and neighbors often serves the best interests of both.
7. THE AGENCY WILL WORK WITH OTHER FEDERAL AGENCIES WHICH HAVE RELATED
RESPONSIBILITIES ON INDIAN RESERVATIONS TO ENLIST THEIR INTEREST AND
SUPPORT IN COOPERATIVE EFFORTS TO HELP TRIBES ASSUME ENVIRONMENTAL
PROGRAM RESPONSIBILITIES FOR RESERVATIONS.
EPA will seek and promote cooperation between Federal agencies to
protect human health and the environment on reservations. We will
work with other agencies to clearly identify and delineate the roles,
responsibilities and relationships of our respective organizations and
to assist Tribes in developing and managing environmental programs for
reservation lands.
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8. THE AGENCY WILL STRIVE TO ASSURE COMPLIANCE WITH ENVIRONMENTAL STATUTES
AND REGULATIONS ON INDIAN RESERVATIONS.
In those cases where facilities owned or managed by Tribal Governments
are not in compliance with Federal environmental statutes, EPA will work
cooperatively with Tribal leadership to develop means to achieve compliance,
providing technical support and consultation as necessary to enable Tribal
facilities to comply. Because of the distinct status of Indian Tribes and the
complex legal issues involved, direct EPA action through the judicial or
administrative process will be considered where the Agency determines, in its
judgment, that: (1) a significant threat to human health or the environment
exists, (2) such action would reasonably be expected to achieve effective
~esults in a timely manner, and (3) the Federal Government cannot utilize
other alternatives to correct the problem in a timely fashion.
In those cases where reservation facilities are clearly owned or managed
by private parties and there is no substantial Tribal interest or contro.l
involved, the Agency will endeavor to act in cooperation with the affected
Tribal Government, but will otherwise respond to noncompliance by private
parties on Indian reservations as the Agency would to noncompliance by the
private sector elsewhere in the country. Where the Tribe has a substantial
proprietary interest in, or control over, the privately owned or managed
facility, EPA will respond as described in the first paragraph above.
9. THE AGENCY WILL INCORPORATE THESE INDIAN POLICY GOALS INTO ITS PLANNING
AND MANAGEMENT ACTIVITIES, INCLUDING ITS BUDGET, OPERATING GUIDANCE, LEGISLA-
TE INITIATIVES, MANAGEMENT ACCOUNTABILITY SYSTEM AND ONGOING POLICY AND
REGULATION DEVELOPMENT PROCESSES.
It is a central purpose of this effort to ensure that the principles
of this Policy are effectively institutionalized by incorporating them into
f.ne Agency's ongoing and long-term planning and management processes. Agency
,-nanagers will include specific programmatic actions designed to resolve prob-
lems on Indian reservations in the Agency's existing fiscal year and long-term
planning and management processes.
William D. Ruckelshaus
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 20460
NOV 8 1984
MEMORANDUM
OFFICE 0>
THE AOMIIMISTR A TO"
SUBJECT: Indian Policy Implementation Guidance
FROM:
TO:
Alvin L. Aim
Deputy Administrator
Assistant Administrators
Regional Administrators
General Counsel
INTRODUCTION
The Administrator has signed the attached EPA Indian Policy. This
document sets forth the broad principles that will guide the Agency in
its relations with American Indian Tribal Governments and in the adminis-
tration of EPA programs on Indian reservation lands.
This Policy concerns more than one hundred federally-recognized
Tribal Governments and the environment of a geographical area that is
larger than the combined area of the States of Maryland, New Jersey,
Connecticut, Massachusetts, Vermont, New Hampshire and Maine. It is an
important sector of the country, and constitutes the remaining lands of
America's first stewards of the environment, the American Indian Tribes.
The Policy places a strong emphasis on incorporating Tribal Govern-
ments into the operation and management of EPA's delegable programs.
This concept is based on the President's Federal India- ^oMcy published
on January 24, 1983 and the analysis, recommendations ..nd Agency input
to the EPA Indian Work Group's Discussion Paper, Administration of
Environmental Programs on American Indian Reservations (July 1983).
'IMING AND SCOPE
Because of the importance of the reservation environments, we must
begin immediately to incorporate the principles of EPA's Indian Policy
into the conduct of our everyday business. Our established operating
procedures (including long-range budgetary and operational planning acti-
vities) have not consistently focused on the proper role of Tribal Govern-
ments or the special legal and political problems of program management
on Indian lands. As a result, it will require a phased and sustained
effort over time to fully implement the principles of the Policy and to
take the steps outlined in this Guidance.
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Some Regions and Program Offices have already made individual starts
along the lines of the Policy and Guidance. I believe that a clear
Agency-wide policy will enable all programs to build on these efforts so
that, within the limits of our legal and budgetary constraints, the Agency
as a whole can make respectable progress in the next year.
As we begin the first year of operations under the Indian Policy, we
cannot expect to solve all of the problems we will face in administering
programs under the unique legal and political circumstances presented by
Indian reservations. We can, however, concentrate on specific priority
problems and issues and proceed to address these systematically and care-
fully in the first year. With this general emphasis, I believe that we
can make respectable progress and establish good precedents for working
effectively with Tribes. By working within a manageable scope and pace,
we can develop a coordinated base which can be expanded, and, as appropriate,
accelerated in the second and third years of operations under the Policy.
In addition to routine application of the Policy and this Guidance in
the conduct of our everyday business, the first year's implementation effort
will emphasize concentrated work on a discrete number of representative
problems through cooperative programs or pilot projects. In the Regions,
this effort should include the identification and initiation of work on
priority Tribal projects. At Headquarters, it should involve the resolution
of the legal, policy and procedural problems which hamper our ability to
implement the kinds of projects identified by the Regions.
The Indian Work Group (IWG), which is chaired by the Director of the
Office of Federal Activities and composed of representatives of key regional
and headquarters offices, will facilitate and coordinate these efforts.
The IWG will begin immediately to help identify the specific projects
which may be ripe for implementation and the problems needing resolution
in the first year.
Because we are starting in "mid-stream," the implementation effort
will necessarily require some contribution of personnel time and funds.
While no one program will be affected in a major fashion, almost all Agency
programs are affected to some degree. I do not expect the investment in
projects on Indian Lands to cause any serious restriction in the States'
funding support or in their ability to function effectively. To preserve
the flexibility of each Region and each program, we have not set a target
for allocation of FY 85 funds. I am confident, however, that Regions and
program offices can, through readjustment of existing resources, demonstrate
significant and credible progress in the implementation of EPA's Policy in
the next year.
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ACTION
Subject to these constraints, Regions and program managers should now
initiate actions to implement the principles of the Indian Policy. The
eight categories set forth below will direct our initial implementation
activities. Further guidance will be provided by the Assistant Adminis-
trator for External Affairs as experience indicates a need for such guidance.
1. THE ASSISTANT ADMINISTRATOR FOR EXTERNAL AFFAIRS WILL SERVE AS
LEAD AGENCY CLEARINGHOUSE AND COORDINATOR FOR INDIAN POLICY MATTERS.
This responsibility will include coordinating the development of
appropriate Agency guidelines pertaining to Indian issues, the
implementation of the Indian Policy and this Guidance. In this effort
the Assistant Administrator for External Affairs will rely upon the
assistance and support of the EPA Indian Work Group.
2. THE INDIAN WORK GROUP (IWG) WILL ASSIST AND SUPPORT THE ASSISTANT
ADMINISTRATOR FOR EXTERNAL AFFAIRS IN DEVELOPING AND RECOMMENDING DETAILED
GUIDANCE AS NEEDED ON INDIAN POLICY AND IMPLEMENTATION MATTERS. ASSISTANT
ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL SHOULD
DESIGNATE APPROPRIATE REPRESENTATIVES TO THE INDIAN WORK GROUP AND PROVIDE
THEM WITH ADEQUATE TIME AND RESOURCES NEEDED TO CARRY OUT THE IWG'S
RESPONSIBILITIES UNDER THE DIRECTION OF THE ASSISTANT ADMINISTRATOR FOR
EXTERNAL AFFAIRS.
The Indian Work Group, (IWG) chaired by the Director of the Office of
Federal Activities, will be an important entity for consolidating the
experience and advice of the key Assistant and Regional Administrators on
Indian Policy matters. It will perform the following functions: identify
specific legal, policy, and procedural impediments to working directly
with Tribes on reservation problems; help develop appropriate guidance
for overcoming such impediments; recommend opportunities for implementation
of appropriate programs or pilot projects; and perform other services in
support of Agency managers in implementing the Indian Policy.
The initial task of the IWG will be to develop recommendations and
suggest priorities for specific opportunities for program implementation
in the first year of operations under the Indian Policy and this Guidance.
To accomplish this, the General Counsel and each Regional and Assistant
Administrator must be actively represented on the IWG by a staff member
authorized to speak for his or her office. Further, the designated
representative(s) should be afforded the time and resources, including
travel, needed to provide significant staff support to the work of the
IWG.
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AND REGIONAL ADMINISTRATORS SHOULD UNDERTAKE ACTIVE OUTREACH AND
r*nEi. PROVIDING ADEQUATE INFORMATION TO ALLOW THEM TO WORK
WAY.
H ;.';*.- first thirteen years of the Agency's existence, we have worked
'..:•• r.'« ii-^ai-,; isn working relationships with State Governments, providing
bir.kyr.jund information and sufficient interpretation and explanations to
ena:.. ;e the-* to work effectively with us in the development of cooperative
Slat •:• programs uncier our various statutes. In a similar manner, EPA managers
•ihouici cry to establish direct, face-to-face contact (preferably on the
r^servar. ion } with Tribal Government officials. This liaison is essential to
understanding Tribal needs, perspectives and priorities. It will also foster
Trib.i- understanding of EPA's programs and procedures needed to deal effec-
tively with US.
4. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD ALLOCATE RESOURCES TO MEET
TRIBAL NEEDS, WITHIN THE CONSTRAINTS IMPOSED BY COMPETING PRIORITIES AND BY
O!'? LEGAL AUTHORITY.
As Tribes move to assume responsibilities similar to those borne by EPA
or State Governments, an appropriate block of funds must be set aside to
supoort reservation abatement, control and compliance activities.
Because we want to begin to implement the Indian Policy now, we cannot
wait until rY 87 to formally budget for programs on Indian lands. Accordingly,
for many programs, funds for initial Indian projects in FY 85 and FY 86
w- 1 ! need to co.ne from resources currently planned for support to EPA-and
S'..iitfc-:r:3na
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As the Agency begins to deal with Tribal Governments as partners in
reservation environmental programming, we will find a similar need for EPA
assistance. Many Regional and program personnel have extensive experience
in working with States on program design and development; their expertise
should be used to assist Tribal Governments where needed.
6. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL
COUNSEL SHOULD TAKE ACTIVE STEPS TO ALLOW TRIBES TO PROVIDE INFORMED INPUT
INTO EPA'S DECISION-MAKING AND PROGRAM MANAGEMENT ACTIVITIES WHICH AFFECT
RESERVATION ENVIRONMENTS.
Where EPA manages Federal programs and/'or makes decisions relating
directly or indirectly to reservation environments, full consideration and
weight should be given to the public policies, priorities and concerns of the
affected Indian Tribes as expressed through their Tribal Governments. Agency
managers should make a special effort to inform Tribes of EPA decisions and
activities which can affect their reservations and solicit their input as we
have done with State Governments. Where necessary, this should include provid-
ing the necessary information, explanation and/or briefings needed to foster
the informed participation of Tribal Governments in the Agency's standard-
setting and policy-making activities.
7. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD, TO THE MAXIMUM FEASIBLE
EXTENT, INCORPORATE TRIBAL CONCERNS, NEEDS AND PREFERENCES INTO EPA'S POLICY
DECISIONS AND PROGRAM MANAGEMENT ACTIVITIES AFFECTING RESERVATIONS.
It has been EPA's practice to seek out and accord special consideration
to local interests and concerns, within the limits allowed by our statutory
mandate and nationally established criteria and standards. Consistent with
the Federal and Agency policy to recognize Tribal Governments as the primary
voice for expressing public policy on reservations, EPA managers should, within
the limits of their flexibility, seek and utilize Tribal input and preferences
in those situations where we have traditionally utilized State or local input.
We recognize that conflicts in policy, priority or preference may arise
between States and Tribos as it does between neighboring States. As in the
case of conflicts between neighboring States, EPA will encourage early communi-
cation and cooperation Between Tribal and State Governments to avoid and resolve
such issues. This is net intended to lend Federal support to any one party in
its dealings with the other. Rather, it recognizes that in the field of environ-
mental regulation, problems are often shared and the principle of comity between
equals often serves the interests of both.
Several of the environmental statutes include a conflict resolution mechan-
ism which enables EPA to use its good offices to balance and resolve the con-
flict. These procedures ca^i be applied to conflicts between Tribal and State
Governments that cannot otherwise be resolved. EPA can play a moderating role
by following the conflict resolution principles set by the statute, the Federal
trust responsibility and the EPA Indian Policy.
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8. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL
SHOULD WORK COOPERATIVELY WITH TRIBAL GOVERNMENTS TO ACHIEVE COMPLIANCE WITH
ENVIRONMENTAL STATUTES AND REGULATIONS ON INDIAN RESERVATIONS, CONSISTENT
WITH THE PRINCIPLE OF INDIAN SELF-GOVERNMENT.
The EPA Indian Policy recognizes Tribal Governments as the key
governments having responsibility for matters affecting the health and
welfare of the Tribe. Accordingly, where tribally owned or managed
facilities do not meet Federally established standards, the Agency will
endeavor to work with the Tribal leadership to enable the Tribe to
achieve compliance. Where reservation facilities are clearly owned or
managed by- private parties and there is no substantial Tribal interest
or control involved, the Agency will endeavor to act in cooperation with the
affected Tribal Government, but will otherwise respond to noncompliance by
private parties on Indian reservations as we do to noncompliance by the
private sector off-reservation.
Actions to enable and ensure compliance by Tribal facilities with
Federal statutes and regulations include providing consultation and
technical support to Tribal leaders and managers concerning the impacts
of noncompliance on Tribal health and the reservation environment
and steps needed to achieve such compliance. As appropriate, EPA may
also develop compliance agreements with Tribal Governments and work
cooperatively with other Federal agencies to assist Tribes in meeting
Federal standards.
Because of the unique legal and political status of Indian Tribes
in the Federal System, direct EPA actions against Tribal facilities
through the judicial or administrative process will be considered where
the Agency determines, in its judgment, that: (1) a significant threat to
human health or the environment exists, (2) such action would reasonably be
expected to achieve effective results in a timely manner, and (3) the Federal
Government cannot utilize other alternatives to correct the problem in a
timely fashion. Regional Administrators proposing to initiate such action
should first obtain concurrence from the Assistant Administrator for Enforce-
ment and Compliance Monitoring, who will act in consultation with the Assis-
tant Administrator for External Affairs and the General Counsel. In emergency
situations, the Regional Administrator may issue emergency Temporary Restrain-
ing Orders, provided that the appropriate procedures set forth in Agency
delegations for such actions are followed.
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9. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL
SHOULD BEGIN TO FACTOR INDIAN POLICY GOALS INTO THEIR LONG-RANGE PLANNING AND
PROGRAM MANAGEMENT ACTIVITIES, INCLUDING BUDGET, OPERATING GUIDANCE, MANAGEMENT
ACCOUNTABILITY SYSTEMS AND PERFORMANCE STANDARDS.
In order to carry out the principles of the EPA Indian Policy and work
effectively with Tribal Governments on a long-range basis, it will be necessary
to institutionalize the Agency's policy goals in the management systems that
regulate Agency behavior. Where we have systematically incorporated State nee-ns,
concerns and cooperative roles into our budget, Operating Guidance, management
accountability systems and performance standards, .we must now begin to facto^ the
Agency's Indian Policy goals ^nto these same procedures and activities.
Agency managers should begin to consider Indian reservations and Tribes
when conducting routine planning and management activities or carrying out
special policy analysis activities. In addition, the IWG, operating under the
direction of the Assistant Administrator for External Affairs and with
assistance from the Assistant Administrator for Policy, Planning and Evaluation,
will identify and recommend specific steps to be taken to ensure that Indian
Policy goals are effectively incorporated and institutionalized in the Agency's
procedures and operations.
Attachment
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